ORAL ORDER

1. The present applicants impugn judgment and order dated 22.10.2021 passed by learned Principal Senior Civil Judge, Halol, Panchmahal under Exh.7 in Regular Civil Suit No.63 of 2021 whereby the application under Order 7 Rule 11 has been rejected.

2. The brief facts leading to filing the present Civil Revision Application are as under :-

2.1 That respondent No.1 viz. Vinodben preferred a suit in the court of learned Principal Senior Civil Judge, Halol, Panchmahal being Regular Civil Suit No.63 of 2021 praying for her share in the ancestral property. The applicants herein who are the brothers of the plaintiff preferred an application under Order 7 Rule 11 praying to reject the suit since she had already relinquished her right in the ancestral property and also on the ground that the suit is time barred. By impugned judgment, the learned trial court has dismissed the application under Order 7 Rule 11 holding that the defence of the defendants cannot be gone into at the stage of Order 7 Rule 11. It has been further held that it is an admitted fact on record that the mother of the plaintiff and the defendants had died on 26.04.2021 and the plaintiff has filed the present suit on 25.06.2021 seeking her share in the ancestral property as well as share from her mother’s share, who had expired on 26.04.2021.

3. Heard learned advocate Ms. Shivangi Gupta for the applicants.

4. Learned advocate Ms. Shivangi Gupta has submitted that the plaintiff has not approached the court with clean hands and she has not disclosed that she had already relinquished her right in the ancestral property upon the death of her father. It is further submitted that in view of relinquishment and subsequent mutation entry in the revenue records, the plaintiff is not entitled to any share. She has further submitted that in view of relinquishment, there was no cause of action remaining to file the suit and the suit is without cause of action and ought to have been dismissed on the ground of want of cause of action as well as on the ground of limitation.

5. A perusal of averments made in Order 7 Rule 11 Application by the present applicants shows that the same are in the nature of defence. The said fact will have to be proved in the trial. Further, no relinquishment deed has been produced on record. Neither it is the case of the defendants that the relinquishment deed was executed and registered under the Indian Registration Act. Taking into consideration the entire facts and circumstances of the case, the learned trial court has rejected the Oder 7 Rule 11 Application. It is well settled that the defence cannot be gone into at the stage of Order 7 Rule 11. The disputed questions of fact have been raised by the defendants with respect to relinquishment by the plaintiff and her entitlement to the ancestral property.

6. In view of this Court, the learned trial court rightly rejected the Oder 7 Rule 11 Application. No interference is called for. The Civil Revision Application is dismissed. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

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