The power to dismiss a suit based on admissions under Order 12 Rule 6 of the CPC is discretionary and should only be exercised when the admissions are specific, clear, and categorical.

1]

Heard on the question of admission.

2]

This Civil Revision has been filed by the petitioner under Section

115 of the Code of Civil Procedure, against the order dated 10.7.2023,

passed by the XIX^th District Judge, Indore in Civil Suit No. 45-A/2015

whereby, the application filed by the petitioner/defendant No.1 Vinay

Khandekar, under Order 12 Rule 6 of the C.P.C has been rejected.

3]

In brief, the facts of the case are that a civil suit for partition,

mesne profit and injunction has been filed by the plaintiff/respondent

No.1 against the petitioner and as many as 17 other defendants being

the members of the same Khandekar family.

4]

Admittedly, the petitioner/defendant No.1 and the plaintiff No.1

and the defendant No.2 are the sons and daughters of late shri Manohar

Khandekar, and the other defendants are also their close relatives being

descendants of their common ancestor late Shri Ganpatrao alias Ganesh

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Khandekar.

5]

The plaintiff‟s case is that his grandfather Kailaschandra

Khandekar had a house at 18/2 Marai Mohalla, Indore which he had

inherited from his father Ganpatrao alias Ganesh Khandekar. The

plaintiff No.1 had two uncles and 3 aunts (brothers and sisters of father

of the plaintiff).

6]

The Plaintiff‟s case is that his father Manohar Khandekar has

sold his ancestor‟s property situated at 18/2 Murai Mohalla, Indore and

out of the sale proceeds of the same, he has also purchased a property at

12/1, Old Palasia, Indore in the year 1973, which is the suit property.

The plaintiff has also averred that a Will has also been executed by his

father as informed to him by the defendant No.1 and has asserted that

the entire property is left by his father to him only. The plaintiff has

further averred that his grandfather Kailaschandra Khandekar acquired

his brother-Balchandra‟s share in the property for some monetary

consideration in the year 1965.

7]

In the aforesaid suit, written statement has already been filed by

the defendant No.1, and a separate application has also been filed under

Order 12 Rule 6 of the CPC contending that there are certain

admissions made by the plaintiff in his plaint and, thus, the following

reliefs have been sought in the aforesaid application:-

“1) the Plaintiff along with the rest of the Khandekar Khandekar

family having accepted the release and sale deeds of the Murai

Mohalla house is estopped from claiming the Murai Mohalla

house to be an ancestral coparcenary property by application of

Doctrine of election and is mandated to accept both these

documents in their entirety that aver the full and sole ownership

of Shri Kailaschandra Khandekar over the Murai Mohalla house,

and his seven class I heirs as owners of the house as tenants-in-

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common after his demise.

2) having admitted his father‟s Will with Indore Municipal

Corporation prior to filing of suit the Plaintiff by application of

Doctrine of Election is estopped from questioning the Will of his

father and the source of funds for acquisition of the suit property

mentioned by his father in the Will, in the Plaint.

3) it is further prayed that the court may be pleased to issue a

suitable decree to the effect that;

a) Shri Kailaschandra Khandekar was the sole and

full owner of the house at 18/2 Murai Mohalla, Indore

and his wife and 6 children were the owners of the

house as tenants-in-common in their capacity as class I

legal heirs after his demise.

b) the sale proceeds of the Murai Mohalla house

were distributed amongst the 7 tenants-in-common

owners of the house.

c) the suit property is a self acquired property of Shri

Manohar Khandekar.

d) the Will dated 29.12.2008 of Shri Manohar

Khandekar is a valid and duly executed Will.

4) Award costs as also reimbursement of the entire expenses

incurred by this defendant along with special cost of

Rs.1,00,000/- under Section 35-B CPC and oblige by dismissing

the suit.”

8]

A reply to the aforesaid application has also been filed by the

respondent/defendant No.1 opposing