IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL REVISION No.123 of 2017 ======================================================

Ramji Prasad, son of Late Sitasharan Mahto, Resident of Village- Pura, P.O.

Mundachh, P.S.- Telhara, District- Nalanda.

... ... Petitioner/s Versus

1. Munna Kumar, S/o Ramji Prasad, Resident of Village- Pura, P.O.

Mandachh, P.S. Telhara, District- Nalanda.

2. Vishwajit Kumar @ Rahul, S/o Ramji Prasad, Resident of Village- Pura, P.O. Mandachh, P.S.- Telhara, District- Nalanda.

... ... Respondent/s ======================================================

Appearance :

For the Petitioner/s : Mr. Rewti Kant Raman, Advocate Mr. Piyush Kumar Pandey, Advocate For the Respondent/s : Mr. Niraj Kumar, Advocate ======================================================

CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA

CAV ORDER

14 24-02-2026 Heard learned counsel for the petitioner as well as learned counsel for the opposite party.

2. This Civil Revision application has been filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) against order dated 07.06.2017 passed in the Title Suit No. 25 of 2014, in the learned Munsif, Hilsa (hereinafter referred to as ‘Trial Court’) whereby and whereunder the learned Trial Court has rejected the petition dated 11.01.2017 filed under Order VII Rule 11 of the CPC.

3. The factual matrix, in brief, is that the plaintiff (opposite party) instituted Title Suit No. 25 of 2014 for declaration that the Schedule II property constitutes joint family property, for allotment of 1/4^th share, for preliminary and final decree of partition through a Pleader Commissioner, and for declaration that alienation made by defendant no. 1 without his consent are not binding upon him. According to the plaint, the common ancestor Kailu Mahto died leaving descendants including Ramji Mahto (defendant no. 1), who had two sons from two wives. It is alleged that family properties including lands in Village Pura, Baddi, and property at Biharsharif, along with a tractor, form part of joint family assets. The plaintiff sought partition on the ground that defendant no. 1 was neglecting family responsibilities and attempting to dispose of joint property in favour of defendant no.3. The defendants entered appearance contending, inter alia, that the suit suffers from non-joinder of necessary parties, having certain property being self-acquired, and that a prior partition had already taken place. They further pleaded that Title Suit No. 6 of 1999 involving similar issues is pending between the parties, hence the present suit is not maintainable. On this basis, the defendants moved an application under Order VII Rule 11 CPC for rejection of the plaint on the ground of absence of cause of action and pendency of earlier litigation.

4. Considering the facts and circumstances of the case, the learned Trial Court, vide impugned order dated 07.06.2017 passed in the Title Suit No. 25 of 2014, rejected the application filed by the petitioner/defendant as not maintainable and held that the grounds given in petition of the defendant (petitioner herein) is not according to the grounds of rejection given in Order VII Rule 11 of the CPC. It further held that the grounds raised by the defendant are mixed question of law and fact and therefore, the same could be decided through the adjudication of the issue.

5. Aggrieved by the impugned order dated

07.06.2017 passed by the learned Trial Court in Title Suit No. 25 of 2014, the petitioner has preferred this Civil Revision application before this Court.

6. Learned counsel for the petitioner assailed the impugned order passed by the learned Trial Court and the application dated 19.01.2017 filed by the petitioner under Order VII Rule 11 of the CPC seeking rejection of the plaint was illegally rejected by the learned Trial Court. It is submitted that the plaintiff/opposite party had instituted Title Suit No. 25 of 2014 for declaration of Schedule II property as joint fa