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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL th ON THE 29 OF JANUARY, 2024 CIVIL REVISION No. 527 of 2022 BETWEEN:-
SMT. PARVATI MISHRA W/O GANESH PRASAD MISHRA D/O LATE RAMSHARAN TIWARI, AGED ABOUT 58 YEARS, OCCUPATION: HOUSEWIFE R/O NEW BASTI ADHARSH NAGAR NEAR DENESH SINGH HOUSE RAGHURAJ NAGAR DISTRICT SATNA (MADHYA PRADESH)
.....PETITIONER (BY SHRI LALJI KUSHWAHA - ADVOCATE )
AND
1. KODU PRASAD TIWARI S/O LATE SHRI RAMSHARAN TIWARI, AGED ABOUT 63 YEARS, OCCUPATION: FARMAR R/O GRAM BARAKALA HALAMUKAM PRABHAT BIHAR COLONY TEHSIL RAGHURAJNAGAR DISTRICT (MADHYA PRADESH)
2. LAXMI NARAYAN TIWARI S/O SHRI RAMSHRAN TIWARI, AGED ABOUT 55 YEARS, OCCUPATION: PESHA NAUKARI NIVASI GRAM BRAKLA TEHSIL RAGHURAJNAGAR JILA SATNA (M.P.) HALMUKAM DUBEY COLONY KATNI JLA KATNI (M.P.) (MADHYA PRADESH)
3. SMT. RAMKUMARI MISHRA W/O SHRI DEENDAYAL MISHRA, AGED ABOUT 50 YEARS, OCCUPATION: PESHA GHARELU KARYA NIVASI GARM KUSHIYRA POST HATI TEHSIL RAGHURAJNAGAR JILA SATNA (M.P.) (MADHYA PRADESH)
4. M.P. RAJYA THROUGH COLLECTOR SATNA JILA SATNA (M.P.) (MADHYA PRADESH)
.....RESPONDENTS (BY SHRI ADITYA JAIN - ADVOCATE FOR RESPONDENT NO.1 AND SHRI Signature Not Verified Signed by: SARSWATI SHREYAS DUBEY - ADVOCATE FOR RESPONDENT NO.2 )
This revision coming on for admission this day, the court passed the following:
ORDER
With the consent of the parties, heard finally at motion stage.
This civil revision under Section 115 of CPC has been filed by the petitioner challenging order dated 08.12.2021 passed by Court below in RCS. No.259A/2017 whereby petitioner's application under Order 7 Rule 11 (A) and (D) read with Section 151 of CPC has been dismissed.
2. Learned counsel for the petitioner, after referring to plaint averments as well as application filed by the petitioner and relying upon Suresh Madan and Others Vs. Manvendra Singh & Others (MP No.3302/2018 dated 07.09.2022), submits that plaintiffs and defendants are real sisters and brothers and original owner of suit property was their father. Therefore, plaintiff is not entitled to 1/2 share in the suit property, in instead, he is entitled to 1/4th share in the suit property. Therefore, suit filed by the plaintiff is not maintainable and it is barred by law.
3. Learned counsel for the respondents/plaintiffs submits that in order passed by the Court below, there is no illegality and perversity. Therefore, petition filed by the petitioner be dismissed.
4. I have heard learned counsel for the parties and perused the record of the case.
5. Perusal of plaint averments reveals that respondents/plaintiffs has filed suit for deceleration of title etc on the ground that as per partition effected by father in the year 2000, plaintiff received 1/2 share in the suit property. As per plaint averments suit property is self acquired property of plaintiff's father and not Signature Not Verified Signed by: SARSWATI ancestral.
6. Hence, in view of above and relief claimed in the plaint, it cannot be said that suit filed by plaintiff is not maintainable and it is barred by any law. It is another matter, if plaintiff fails to prove averments made in the plaint. But on that ground, it cannot be said that plaintiff's suit is not maintainable or it is barred by any law.
7 . Hence, in this Court's opinion learned trial Court has not committed any illegality in rejecting petitioner's application under Order 7 Rule 11 of CPC.
8. Hence, this civil revision stands dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE sm Signature Not Verified Signed by: SARSWATI
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