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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

Civil Revision No.341/2021

Krishna Kumar Anand and others................................... Applicants

Versus

Varun Anand and others.............................................

Respondents

For the applicants :

Mr.Divesh Jain, Advocate

For the respondents;

Mr.Prakash Upadhyay, Advocate

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Present:

Hon'ble Mrs.Justice Anjuli Palo

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Date of Reserve: 21.07.2022

Date of Order:

05.08.2022

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This civil revision under section 115 of the Code of Civil

Procedure has been filed by the applicant (defendant No.1) assailing the

order dated 22.9.2021 passed in Civil Suit No.14-A/2015 whereby First

Civil Judge Class-I, Gadarwara has rejected his application under Order

7 Rule 11 of the Code of Civil Procedure [hereinafter referred to as the

"Code"].

2.

In brief, the facts of the case are that the applicant (defendant

No.1) and respondent No.2 & 3 (Defendants) are real brothers. The

respondent No.1 is plaintiff. The respondent No.4 is mother of

respondent No.1 (plaintff) and the respondent No.5 is real brother of

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respondent No.1/plaintiff-Varun Anand. A civil suit has been filed by

the respondent No.1 as plaintiff before the trial Court against the

petitioner (defendant No.1) and other respondents No.2 to 7 seeking

declaration, partition and possession as also claiming one-third share,

out of one-fourth share of the land of his father situated in Mouza

Gadarwara, Settlement No.119, Patwari Halka No.18/1 and to declare

the entries made in Sanshodhan Panji No.99 order dated 30.6.2006 as

null and void as also Sanshodhan Panji No.308 order dated 20.7.2014

passed in favour of respondent No.6/Defendant No.6 (Kapil son of

present applicant) as null and void. The respondent No.1/plaintiff also

claimed to decide his share under section 54 of the Code and after

parititon through the competent court final decree be passed.

3.

The applicant (defendant No.1) filed an application under Order 7

Rule 11 reard with section 151 of the Code alleging that partition of

disputed land had already taken place on 30.6.2006 vide Sanshodhan

Panji No.99, which is binding on the parties because there was written

partition executed on 18.9.2005 between legal heirs of Mohanlal

Anand, namely, applicant and his brothers, namely, Praveshchand,

Gulshan Kumar, Kuldeep Chand. They were enjoying their respective

possession according to mutual partition. Thereafter, father of

respondent No.1 (plaintiff) himself sold some immovable property. He

had not challenged the partition during his lifetime because that

partition took place with the consent of all the brothers, therefore,

property cannot be partitioned again as per law. Further, the suit is

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clearly time barred and in absence of any cause of action in favour of

plaintiff, the suit is not maintainable, hence, the suit is liable to be

dismissed.

4.

Admittedly, there is a written mutual partition deed on record

which is also pleaded by the respondent No.1 (plaintiff) in his plaint. He

himself pleaded share of the applicants and other brothers, who are his

real uncles. His mother and his own real brothers (respondents No.4 &

5) have also not challenged the partition deed dated 18.9.2005 and

Sanshodhan Panji order dated 30.6.2006, after death of father of the

plaintiff, namely, Gulshan Kumar.

5.

Earlier, the applicant had filed similar application under Order 7

Rule 11 of the Code, objecting maintainbility of present suit which was

dismissed by the trial Court vide order dated 05.5.2016 (Annexure-

A/4). Thereafter, the present appilcant filed Civil Revision No.241/2016

before this Hon'ble Court. This Court vide order dated 03.10.2019

(Annexure-A/5) had allowed civil revision and remanded the matter to

the trial Court to decide the application afresh after considering the

objection