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2023 Supreme(MP) 691
IN THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
Subodh Abhyankar, J.
Vinay – Appellant
Versus
Harshvardhan & Ors. – Respondents
Civil Revision No. 598 of 2023
Decided On : 14-12-2023
Shri Vinay Khandekar, in Person, for the Appellant.
Headnote:
(1) Civil P.C. 1908 -- O. 12 R. 6 -- admission -- suit against 18 defendants -- plaint containing lengthy averments with extensive family history -- cause of action stated to be when defendant No. 1 barred plaintiff from entering suit property -- it cannot be said that mere reference by plaintiff to Will of his father regarding ancestral property allegedly executed in favour of defendant No. 1, would amount to admission as prescribed under O. 12 R. 6 -- grounds raised by petitioner can only be decided after evidence is led -- no interference called for. Civil Appeal No. 4645 of 2022 decided on 6.7.2022 followed. (2007)10 SCC 571, (2020) 11 SCC 103, AIR 1971 SC 1041, AIR 1990 SC 1833 and AIR 2010 SC 2077 referred to. [Paras 12 & 14]
(2) Civil P.C. 1908 -- O. 12 R. 6 -- admission -- defendant not required to file exhaustive application to demonstrate admission by plaintiff -- admission must be discernible by mere perusal of plaint -- otherwise, its evidentiary value can only be ascertained during trial. [Para 15]
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ORDER
1. Heard on the question of admission.
2. This Civil Revision has been filed by the petitioner under Section 115 of the Code of Civil Procedure, against the order dated 10.7.2023, passed by the XIXth District Judge, Indore in Civil Suit No. 45-A/2015 whereby, the application filed by the petitioner/defendant No.1 Vinay Khandekar, under Order 12 Rule 6 of the C.P.C has been rejected.
3. In brief, the facts of the case are that a civil suit for partition, mesne profit and injunction has been filed by the plaintiff/respondent No.1 against the petitioner and as many as 17 other defendants being the members of the same Khandekar family.
4. Admittedly, the petitioner/defendant No.1 and the plaintiff No.1 and the defendant No.2 are the sons and daughters of late shri Manohar Khandekar, and the other defendants are also their close relatives being descendants of their common ancestor late Shri Ganpatrao alias Ganesh Khandekar.
5. The plaintiff's case is that his grandfather Kailaschandra Khandekar had a house at 18/2 Marai Mohalla, Indore which he had inherited from his father Ganpatrao alias Ganesh Khandekar. The plaintiff No.1 had two uncles and 3 aunts (brothers and sisters of father of the plaintiff).
6. The Plaintiff's case is that his father Manohar Khandekar has sold his ancestor's property situated at 18/2 Murai Mohalla, Indore and out of the sale proceeds of the same, he has also purchased a property at 12/1, Old Palasia, Indore in the year 1973, which is the suit property. The plaintiff has also averred that a Will has also been executed by his father as informed to him by the defendant No.1 and has asserted that the entire property is left by his father to him only. The plaintiff has further averred that his grandfather Kailaschandra Khandekar acquired his brother-Balchandra's share in the property for some monetary consideration in the year 1965.
7. In the aforesaid suit, written statement has already been filed by the defendant No.1, and a separate application has also been filed under Order 12 Rule 6 of the CPC contending that there are certain admissions made by the plaintiff in his plaint and, thus, the following reliefs have been sought in the aforesaid application:-
'1) the Plaintiff along with the rest of the Khandekar Khandekar family having accepted the release and sale deeds of the Murai Mohalla house is estopped from claiming the Murai Mohalla house to be an ancestral coparcenary property by application of Doctrine of election and is mandated to accept both these documents in their entirety that aver the full and sole ownership of Shri Kailaschandra Khandekar over the Murai Mohalla house, and his seven class I heirs as owners of the house as tenants-in- common after his demise.
2) having admitted his father's Will with Indore Municipal Corporation prior to filing of suit the Plaintiff by application of Doctrine of Election is estopped from questioning the Will of his father and the source of funds for acquisition of the suit property mentioned by his father in the Will, in the Plaint.
3) it is further prayed that the court may be pleased to issue a suitable decree to the effect that;
a) Shri Kailaschandra Khandekar was the sole and full owner of the house at 18/2 Murai Mohalla, Indore and his wife and 6 children were the owners of the house as tenants-in-common in their capacity as class I legal heirs after his demise.
b) the sale proceeds of the Murai Mohalla house were distributed amongst the 7 tenants-in-common owners of the house.
c) the suit property is a self acquired property of Shri Manohar Khandekar.
d) the Will dated 29.12.2008 of Shri Manohar Khandekar is a valid and duly executed Will.
4) Award costs as also reimbursement of the entire expenses incurred by this defendant along with special cost of Rs.1,00,000/- under Section 35-B CPC and oblige by dismissing the suit.'
8. A reply to the aforesaid application has also been filed by the respondent/defendant No. 1 opposing the same, and the learned Judge of the t
