The main legal point established is that in a suit for partition, the property belonging to one co-sharer shall be deemed to be held by that co-sharer on behalf of the other co-sharers, and the suit cannot be rejected solely based on the plaint averments.

JUDGMENT

SUBODH ABHYANKAR, J. - This civil revision has been filed by the petitioners/defendants no.1 and 2 under Sec. 115 of the C.P.C. assailing the order dtd. 23/3/2023 passed by the 26th Additional District Judge, Indore (M.P.) in RCS No.101/2016 whereby, the application filed by the petitioner/defendant No.1 under Order 7 Rule 11 of the C.P.C. has been rejected.

2. In brief, the facts of the case are that the civil suit has been filed by the respondent No.1 for cancellation of the sale deed and permanent injunction of the suit property against the petitioners and defendants No.2 to 4.

3. In the aforesaid civil suit, the defendant no.1 and 2/petitioners have also filed their written statement and it is also contended in their written statement that the petitioners have not sought the relief of possession of the property despite the fact that the suit property is in possession of the defendant No.4 and, hence, the suit is liable to be rejected. Thus, a separate application to this effect under Order 7 Rule 11 of the CPC was also filed, citing Sec. 34 of the Specific Relief Act, 1963.

4. The plaintiff filed her reply to the aforesaid application contending that the suit property is a joint property hence, the plaintiff has filed the suit that the plaintiff is an equal share holder of the suit property at par with the defendants No.1 to 12. It is also stated that the suit is at the stage of recording the plaintiff's evidence and only to further delay the trial, the application has been filed, which is liable to be dismissed.

5. The aforesaid application has been rejected by the learned Judge of the trial court vide its impugned order holding that the suit has been filed by the plaintiff with pleadings that the plaintiff is also entitled to the equal share in the property along with the defendants No.1 to 12 and the property is a joint property as there is no partition and, in such circumstances, there is no need for the plaintiff to seek the possession of the property. The court has also held that the application under Order 7 Rule 11 of the CPC is to be decided only on the averments made in the plaint and on this ground also, no case for interference is made out.

6. Contending that the finding recorded by the learned Judge of the civil court is erroneous, Ms.Pandya, learned counsel for the petitioners has also relied upon the decisions rendered by the Supreme Court in the case of Shakuntala vs. Lt. Col. Mukhtiar Singh and others reported as 2008(11) SCC 42 and Gian Chand vs. Krishen Singh and another reported as 1978 AIR (Jammu and Kashmir) 16 .

7. Heard. On due consideration of the submissions and on perusal of the documents filed on record, it is found that so far as the civil suit is concerned, the plaintiff has pleaded that she and the other defendants are the close relatives and belong to the same family, and they are entitled to the equal share in the family property. The plaintiff has also sought the cancellation of the sale deed, which has been allegedly executed by the defendants no.1 to 3 in favour of the defendant no.4 without there being any partition in the family property. At this juncture, this court may fruitfully use the decision rendered by the Supreme Court in the case of Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271, at page 277 : the relevant para of the same reads as under:-

'25. Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. No such finding has been arrived at by the High Court.'

(emphasis supplied)

8. In view of the aforesaid dictum of the Supreme Court, it is apparent that in a suit for partition, when the pr