Balwant Singh vs Yadwinder Singh Brar And Others

Birendra Kumar, J

Heard the parties.

This civil revision petition is against the order dated 22.11.2022 passed in original civil suit No.15/2022, whereby application of the defendant-petitioner under Order 7 Rule 11 CPC has been rejected.

The plaintiff-respondents filed the said suit stating therein that late Mr. Karm Singh was common ancestor and he had purchased the referred house in the name of his three sons Balwant Singh, Ram Singh and Nakshtra Singh from the income of the ancestral property. Karm Singh died in the year 1978. However, in his life time, he had partitioned the said property amongst his sons i.e. petitioner Balwat Singh and two others late Ram Singh and late Nakshtra Singh. 1\3 share in the said house was allotted to Balwant Singh.

It is further stated that plaintiff No.1 & 2, who are grandsons of Balwant Singh were residing in a portion of the said house. The electricity connection was in the name of late Satnam Singh. Satnam Singh was son of Balwant Singh and father of plaintiff Nos. 1 and 2. The suit was filed with prayer for partition out of 1/3 share in the suit property declaring 1/18 share of the plaintiffs in the suit property. Further prayer is for partition by metes and bounds.

Learned counsel for the petitioner contends that the prayer under Order 7 Rule 11 CPC was on the ground that the plaint does not disclose a cause of action. In other words the plaintiffs had no cause of action to bring the suit in the lifetime of Balwant Singh.

One of the facts raised by the plaintiffs is that the suit property was purchased from the funds of joint family property and if this fact stands proved in the suit, the plaintiffs being coparceners would be entitled to have a decree for partition. Otherwise, the suit may be dismissed after proper adjudication, but in no case it can be said that the plaint does not disclose a cause of action. No other ground for rejection of plaint is raised.

Learned counsel for the petitioner has relied on the judgment of Radha Bai Vs. Ramnarayan & Ors decided on 22.11.2023, for his submission that once partition amongst the sons of Karm Singh is admitted the property in the hands of the petitioner was self-acquired property of the petitioner and during lifetime of the petitioner, no other can claim any title over the said property. No doubt the petitioner can claim the property, after partition as self-acquired property but that claim would be limited qua other co-sharers who separated and not qua the descendants of Balwant Singh who are coparceners and have got coparcenary right in the suit property by birth. Therefore, they can validly claim for partition. Moreover, the aforesaid assertion would not make out a case that the plaint does not disclose a cause of action.

Hence, this civil revision stands dismissed.

Nothing observed above, shall prejudice the trial of the suit.