1. The defendant has filed the present civil revision being aggrieved by the order dated 24.1.2017 by which, the learned Civil Judge, Class-II, Jaora, District Ratlam has rejected his application under Order 7 rule 11 of CPC.

2. The respondents No.1 to 4 filed the suit for declaration, partition and permanent injunction against the present applicant. The plaintiffs No.1 and 2 are real brother and plaintiff No.3 is sister and plaintiff No.4 is their mother. The defendant No.1 is father of plaintiffs No.1 and 2 and husband of defendant No.4 and all of them belongs to Hindu religion and governed by Hindu Law. The agriculture land of various survey numbers mentioned in para 2 of the plaint is recorded in the name of defendant No.1 being an ancestral property. The applicant/defendant No.1 got the suit properties from his father. According the plaintiffs, the defendant No.1 without partition of the property has sold the land bearing Survey No.255/2 area 0.454 are by registered sale deed to Bhanwarkunwar Bai. The defendant No.1 is having only 1/5th share in entire ancestral property, therefore, they are co-owner of the ancestral property and having 4/5-4/5 share each and entitled to get mutated after the partition and defendant No.1 be restrained to alienate the suit property.

3. The defendant No.1 filed an application under Order 7 rule 11 of CPC for dismissing the plaint on the ground that during his lifetime the suit is not maintainable under the provisions of section 8 of Hindu Succession Act, 1956 and the Madhya Pradesh Land Revenue Code, 1959. The aforesaid application was opposed by the plaintiffs and thereafter, the learned trial Court has partly allowed the application on the ground that whether the plaintiffs No.1 and 2 being son and daughter of defendant No.1 have got the right by way of birth or not, which can be decided after evidence on merit, hence, the plaint is not liable to be dismissed and directed the plaintiff to value the suit for relief of partition and pay the ad-valorem Court fees. Being aggrieved by the aforesaid order, the present petition before this Court.

4. Counsel for the petitioner submits that the plaintiffs are claiming share in the ancestral property being son and daughter of defendant No.1 i.e. present applicant. They all were born after the year 1956, therefore, under section 8 of the Hindu Succession Act, he cannot get the relief of partition and share in the property during the lifetime of their father. In support of his contention, he has placed reliance over the the judgement passed in the case of Sushila Bai and others v. Smt. Rajkumari and others, reported in 2017(I) MPJR 228, Ghanshyam s/o Kanhaiyalal v. Kanhiyalal s/o Siddhnath and others, reported in 2007(4) MPLJ 418, Sheela Devi and others v. Lal Chand and another, reported in 2007(1) MPLJ 435, Chandrakanta and another v. Ashok Kumar and others, reported in 2002(3) MPLJ 576, Anil and others v. Gattulal and others, reported in 2004 RN 109, Babulal v. Ramkali Bai, reported in 2012(II) MPWN 58, and Dilip Kumar Jain Vs. Shobharani @ Sabitri Bai Jain and others, reported in 2005(4) MPLJ 66.

5. In reply, Shri M.L. Jain, learned counsel appearing on behalf of the respondents submits that the plaintiffs No.1 to 4 has got the right by way of birth in the ancestral property. The defendant No.1 is trying to disposes of the ancestral property, therefore, in order to protect the property, the suit has been filed for partition and permanent injunction and, therefore, the suit is maintainable and revision is liable to be dismissed.

6. As per the pleadings in the plaint, the entire suit property is ancestral property and recorded in the name of defendant No.1/present applicant. The plaintiffs are claiming respective shares in the property being son and daughter of defendant No.1.

7. That the entire land is an agricultural land. Under section 164 of the Madhya Pradesh Land Revenue Code, 1959, the property devolves upon the death of the Bhumiswami and no