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Court No. - 3

Case :- FIRST APPEAL No. - 808 of 2022

Appellant :- Ved Prakash

Respondent :- Smt. Urmila And 2 Others

Counsel for Appellant :- Surendra Vikram Singh

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

1.

Heard Sri Surendra Vikram Singh, learned counsel

for the defendant-appellant.

2.

This appeal under Section 19 of the Family Courts

Act, 1984 has been filed praying to set aside the

judgement and order dated 22.09.2022 in O.S. No. 274

of 2005 (Urmila vs. Mangaroo) passed by Principal

Judge, Family Court, Azamgarh, whereby the issue no. 6

pertaining to rejection of plaint or under Order VII Rule

11 C.P.C., has been decided holding that the plaint is not

barred by Order VII Rule 11.

Facts :-

3.

Brief facts of the present case are that the plaintiff-

respondent no. 1 is the wife of late Madho Singh. From

their wedlock, the plaintiff no. 2 Kanchan Lata alias

Neetu Singh (daughter) was born. Madho Singh died in a

road accident in the year, 1985. The defendant-appellant

and Madho Singh are the sons of Mangaroo Singh

(defendant-respondent no. 4). There were certain

immovable properties situate in villages Maanpur

Bachhuwa, Pargana Belhabans, Tehsil Mehnagar, District

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Azamgarh, apart from the house which according to the

plaintiff-appellant were ancestral property and in which

the plaintiff's husband was having share.

4.

It is the case of plaintiff-respondent that since

Mangaroo Singh (father of the deceased Madho Singh

and the defendant-appellant) was the head of the family,

therefore, the immovable properties in question

belonging to the joint family, were recorded in his name

in revenue records. Since nothing was being paid for

maintenance etc. to the plaintiff-respondent and her

daughter, therefore, the plaintiff-respondent has filed

the aforesaid O.S. No. 274 of 2005 praying (i) for a

decree of maintenance and (ii) injunction in

respect of the properties. The aforesaid relief was

sought by the plaintiff-respondent against her father -in-

law, namely, Mangaroo Singh, mother-in-law, namely,

Gujrati and Dewar Ved Prakash i.e. defendant-appellant.

5.

In paragraph 38 of his written statement, the

defendant-appellant has stated that the suit filed by the

plaintiff-respondent is barred by Order VII Rule 11 C.P.C.

Nothing has been said that as to how the suit is barred.

However, the court below framed issue no. 6 as under :-

“D;k okn vkns'k 7 fu;e 11 tk0nh0 ls ckf/kr gS+?”

6.

The aforesaid issue has been decided by the court

below by judgement and order dated 22.09.2022

holding that the plaint is not barred by Order VII Rule 11

C.P.C.

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7.

Aggrieved with the aforesaid impugned judgement

and order, the defendant-appellant has filed the present

appeal under Section 19 of the Family Courts Act, 1984.

Submissions :-

8.

Learned counsel for the defendant-appellant

submits that the suit has been filed by the plaintiff-

respondent for a charge on properties for maintenance

and therefore, in view of provisions of Section 27 of the

Hindu Adoptions and Maintenance Act 1956 (hereinafter

referred to as the “Act, 1956”), the plaint was liable to

be rejected under Order VII Rule 11(d) of the Civil

Procedure Code, 1908.

9.

No other submission has been made before us by

learned counsel for the defendant-appellant, except the

submission afore-noted.

Discussion & Findings :-

10.

We have carefully considered the submission of

learned counsel for the defendant-appellant.

11.

We find that the case set up by the plaintiff-

respondent in his plaint of O.S. No. 274 of 2005 is that

after the death of her husband, namely, Madho Singh,

the plaintiff-respondents being heir has become co-

owner of the properties but the defendants are

occupying the entire properties and taking benefits

thereof on one hand and on the other hand, they are not

maintaining the plaintiffs. It has also bee