1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.145 OF 2009 Smt. Shevantibai Bhimgonda Patil & Ors. ....Petitioners Versus Anjana Padmgonda Patil & Ors. ....Respondents. Mr. N.V. Walawalkar, Sr.Counsel i/b. V.P. Rajure for the Petitioners. Mr. Rajesh Datar for Respondent No.1. Mr.P. D. Pise for Respondent Nos.3,4 & 6. CORAM : R. V. MORE, J. DATED : 29TH APRIL, 2009. P.C. Heard, Mr. Walawalkar, learned Senior Counsel for the Petitioners, Mr. Datar, learned Counsel for Respondent No.1 and Mr. Pise, learned Counsel for Respondent Nos.3, 4 & 6. 2. The Petitioners are the Original Defendant Nos.1 to 4 and the Respondent No.1 is the Original Plaintiff. She filed regular Civil Suit No.109 of 2008 before the 3rd Joint Civil Judge, Junior Division, Kolhapur for partition and separate possession of her 1/9th share in the suit property. The Petitioners/Original Defendant Nos.1 to 4 filed an application under Order 7 Rule 11 (d) of the Civil Procedure Code, 1908 in the Trial Court for rejection of the plaint on the ground that suit is barred by law. 3. Mr. Walawalkar, learned Senior Counsel, submitted that previously there was a dispute regarding mutation entries amongst the Plaintiff and the Defendants and this dispute went up to the State Government. During the 2 pendency of the dispute before the State Government, the dispute was compromised and an agreement was executed between the Respondent No.1/Org.Plaintiff and the present Petitioners/Org.Defendant Nos.1 to 4 and under this compromise, the Respondent No.1/Org.Plaintiff agreed to relinquish her rights in respect of the suit property. Mr. Walawalkar, learned Senior Counsel, further submitted that in pursuance of this compromise, the Respondent No.1/Org.Plaintiff refused to execute relinquishment deed and therefore, the Petitioner/Org.Defendant Nos.1 to 4 have filed Regular Civil Suit No.831 of 2007 for specific performance of the above agreement. He further submitted that the Respondent No.1/Org.Plaintiff has referred the above facts in paragraph 4 of the plaint. He lastly submitted that in view of the above facts now the Plaintiff is estopped by promissory estoppel from claiming partition of the suit property. He relied upon the Apex Court judgment in “Kale and Ors. versus Deputy Director of Consolidation” reported in A.I.R.1976, Supreme Court 807 to substantiate his contention that the family arrangement can be enforced. 3. Mr.Datar, learned Counsel for Respondent No.1, per-contra supported the impugned order by submitting that the jurisdiction of the court is to be decided on the basis of the averment in the plaint and if the plaint in totality is taken into consideration, then the learned Trial Judge after considering the averment in the plaint rightly rejected the Petitioners/Defendant Nos.1 to 4 Application under Order 7 Rule 11 of the Civil Procedure Code, 1908. 4. Having heard, learned Senior Counsel and learned Counsel appearing for the respective parties and having gone through the impugned order alongwith the judgment of the Apex Court mentioned above, I do not find any merit in the Civil Revision Application. It is now well settled that while deciding application under Order 7 Rule 11 of the Civil Procedure Code, 1908 only averment in the plaint are required to be taken into consideration and to decide the maintainability of the suit, the Court cannot travel beyond the averment in the plaint. I have perused the plaint. In paragraph 4 of the plaint, the Respondent No.1/Plaintiff only mentioned that the Petitioners/Defendant Nos.1 to 4 have filed 3 regular Civil Suit No.831 of 2007 claiming rights under the agreement/compromise dated 19th April, 2001. She has specifically averred that she has got 1/9th undivided share in the suit property. Since the agreement/compromise is not accepted by Respondent No.1./Plaintiff, it cannot be said that Respondent No.1/Plaintiff is estopped from claiming the share in the suit property. 5. Mr. Walawalkar, learned Senior Counsel placed reliance on the above agreement dated 19th April, 2001 which is annexed at page no. 30 and submitted that the Respondent No.1/Org.Plaintiff’s suit is not maintainable. This submission of Mr. Walawalkar cannot be accepted as the said agreement is disputed by Respondent No.1/Org.Plaintiff. It is for the Petitioners/Defendant Nos.1 to 4 to prove the document by adducing evidence in trial and on the basis of the said document, the Respondent No.1/Org.Plaintiff’s plaint cannot be rejected under the provisions of Order 7 rule 11 of the Code of Civil Procedure, 1908. 6. So far as ratio of Apex Court in “Kale and Ors. versus Deputy Director of Consolidation” reported in A.I.R.1976, Supreme Court 807 is concerned, the same may not apply in the facts and circumstances of the present case, in as much as the Petitioners themselves have filed suit for specific performance of the agreement dated 19th April, 2001 and in the present suit also they are under obligation to prove the said document in order to substantiate their defence about the entitlement of Respondent No.1/Org.Plaintiff. In the facts and circumstances mentioned above, I do not find merit in the Civil Revision Application and the same is accordingly dismissed. 7. Needless to mention that the above observations are made for the purpose of disposing the present Civil Revision Application and the Trial Court shall dispose of the suit independently on its own merit and without being influenced by the said observations. 4 (R. V. MORE, J.)