Order on Board

05.02.2024

1. This Civil Revision has been filed against the order dated 16.10.2023 passed by the 3rd Additional Judge to the Court of 1st Civil Judge, Class-II, Raipur in Civil Suit No.392-A/2018 whereby, the application filed by the Applicants/Defendant under Order 7 Rule 11 CPC seeking rejection of the Plaint, was dismissed.

2. Brief facts of the case are that Non-Applicant No.1/Plaintiff has preferred a Civil Suit seeking partition and possession of the property of his share as also declaration of judgment and decree dated 27.11.2008 passed in Civil Suit No.18-A/2007 as null and void being the purchaser of the said property as brother of Applicant/Defendant No.1 namely Ramcharan Bharti had executed sale deed dated 29.05.2000 in his favor. Applicant/Defendant No.1-Smt Ganga Bai had filed a Civil Suit bearing No.18-A/2007 challenging the aforesaid sale deed executed in favor of Non-Applicant No.1/Plaintiff on 29.05.2000 on the ground that the suit property is the ancestral property and her brother has no absolute right to transfer the entire property as the said suit was decreed in her favour and it was declared that sale deed to the extent of half of the share is binding on her and further, in favour of Non-Applicant No.1/Plaintiff, a right has been reserved that he may contest the suit for partition and separate possession and a further stipulation has been fixed that Non- Applicant No.1/Plaintiff has to contest the aforesaid suit within a period of 6 months failing which, Applicant/Defendant No.1-Smt Ganga Bai will be entitled for possession of the whole suit property. Non-Applicant No.1/Plaintiff has challenged the aforesaid judgment by way of First Appeal No.17/2009 before this Court, which was dismissed vide judgment dated 07.09.2018 and thereafter, Non- Applicant No.1/Plaintiff has filed the instant suit claiming the aforesaid relief in which, Applicant No.1/Defendant No.1 has preferred an application under Order 7 Rule 11 CPC and raised a ground that the subsequent suit is barred by law and the principle of res judicata and principle of Order 2 Rule 2 CPC have been attracted. The said application has been dismissed by the trial Court by observing that in the light of the principle of res judicata, the facts mentioned the said application cannot be determined.

3. Heard learned Counsel for the parties and perused the order impugned as also the documents annexed herewith carefully.

4. Undisputedly, Non-Applicant No.1/Plaintiff has filed a suit seeking partition as one of the co-heirs, has earlier filed the suit and challenged the sale deed, which was executed in his favour by brother of Applicant/Defendant No.1-Ganga Bai and Non-Applicant No.1/Plaintiff has declared that he is entitled for only half of the share of the suit property and the sale of remaining portion by brother of Applicant/Defendant No.1 is not binding in her favour and Non- Applicant/Plaintiff has filed an Appeal whereby, the decree passed in Civil Suit No.392-A/2018 has been affirmed. The present suit has been filed for a specific relief seeking partition and separate possession and also seeking declaration of judgment and decree dated 16.10.2023 passed in Civil Suit No.392-A/2018 as null and void.

5. Considering the nature of relief as claimed by Non-Applicant No.1/Plaintiff, the trial Court, after framing the issues, made an assessment that as to what extent, the principle of res judicata attracts in the instant case. In the impugned order, the trial Court has not closed the opportunity of Defendant No.1-Ganga Bai and given the said finding after enabling the documents to determine the said issue, therefore, this Court does not find any illegality or infirmity in the said order warranting interference invoking revisional jurisdiction.

6. It is well settled that while deciding the application under Order 7 Rule 11 CPC, this Court has to presume the facts stated in the Plaint as correct and the Court cannot look into the defence set up by th