^o' v ^ (\ HIGH CQURT OF CfrtHATTISGARH AT BILASEUR C.R. N0.56 OP 2008 APPLICANT Defendant hio. 3 NQN- APPLICANTS PLAINTIFFS Vijay Lal, S/o Agya Ram Jain, 5^ yeare, R/o Rojgari Para, Jaistambh, Kondagaon, DistrictBastar(C.G.) Versus 1. Ravindra Kumar Chaterjee, S/o Adhir Kumar Chaterjee, aged about 56 years, R/o Rajnandgaon (C.G.) at present 28 HIG Maryti Vihar, Near Sky Automobijes Mahoba Bazar, Raipur (C.G.) 2. Sapan Kumar Chateqee, S/o Adhir Kumar, 52 years, R/o Chindwada (M.P.) at Present Branch Manager, Central Bank of india North Chirmiri, District Koriya (C.G.) 3. Smt. Ranu Ganguli. W/o M.S. Qanguli, §2 years, R/o OSd Daga Bullding, Near G.N.T. High Schooi. Raipur (C.G.) 4. Smt. Dolly Rani Chaterjee, aged about S6 years, R/o Quarter No.2, Amrapali Colony, In front of M.M.i. Hospitai, Main Road, Raipur (C.G.) CIVILREVISION U/S 115 OF THE CODE OF CIVIL PROCEDURE (Sinale Bench: Hon'ble IVIr. N.K. Aaarwal. J.) Present: Shri Prafull Bharat, counsel for the appJJcant. Shri Sanjay K. Agrawal, counsel for non-applicants No.1 & 2. Shri Gautem Khetrapai, counsel for non-applicante No. 3 & 4. Q ORDER (Passed on 28m day ofOctober, 2009) The instent revision is directed against ttie order dated 18-01-2008 passed in Civil Suit No.33-A/2006 by Civil Judge, Class-il, Kondagaon, District Bastar whereby and whereunder the appiication under Order 7 Rute 11 of C.P.C. filed by the applicant has been ctismissed by the trial Court. 2. Brief facts of the case stated as under: The plaintiffs/non-appljcants No. 1 & 2 eariier filed a suft seeking relief of declaration to declare the sale deed dated 28-06-2C02 as void andl ineffectjve and also relief of possession. Later on, the plaint was amended and reHef of ^--^^ ^ ^ possession has been Gonverted into retief of injuncSon seeking pelief of injunction restraining the defendant No.3 not to make any alteration in tie suit house and also pleaded that the plaintiffs are in joint possession of tfie sytt pr^erty along with the applicant herein as the property is joint family property and the purchaser of undivided share of the suit property cannot get @xclusive possession over it without claiming partition. 3. Thereafter, applicant/defendant No. 3 preferred a@ applieation under Order 7 Rule 11 of C.P.C. on the ground that since the plairtiffs have cl^med relief of declaration simplicitor therefore, the suit as per proviso to See^ion 34 of the Specific Relief Act, 1903 (for short 'the Act') is not majntainable. Leamed Trial Court dismissed the application by recording a finding that slnce asper the pjaint averment the property is joint family property and is in |o{nt possession therefore, it Js not necessary to claim relief of specific possession and at this stage based on the plaint altegations it cannot be sald that the suit is baired under the aforesaid provision. 4. Shri Prafull Bharat, leamed counsel for the applicant would submit that earlier the relief of possession was claimed by the plaintiffs/non-applicants No. 1 & 2. Thereafter, the same was deleted by way of amendment and the relief of jnjunction has been claimed and therefore, on tie face, the sutt is barrecj under the provision of Section 34 of the Aet. 5. Per contra, Shri Sanjay K. Agrawal, learned counael for non-applicants No. 1 & 2 would submit that the plaint stands amenctect from the date of sutt and as per amended plaint, it has been averred that the ptaintifls are in joint possession of the suit properiy, therefore, prima facie at this stag@, it eannot toe said that the applicant is in exclusive possession of suit house and this issue cannot be decjded under Order 7 Rule 11 of C.P.C. The question whether or not the applicant is in excjusive possession has to be decided after framing the Jssue in this regard and after recording the evidence thereupon. ^'^^ l' %s & '%. ^,. ^^ ^'^i'S^^- %.'•^ I 4; f'' .ft: n, ) Kvr 6. Shri Gautam Khetrapal, teamed counsel for non-applicarits No. 3 & 4 supported the stand ofthe learned counsel for non-applicants No. 1 & 2. 7. I have heard learned counsel for the parties and perused the record. 8. Undisputedly, the plaint stands amended from the date of filing of suit and as per plaint averments, the plaintiffs/non-applicants No. 1 & 2 are in joint possession of the property along with the applicant therefore, stnce ttie question is a mixed question of law and fact and that whether or not the applicant defendant is in possession of the suit property has to t>e decided by the Trial Court afterframing the issue in this regard and aftertaking evldencethereupon. 9. In view ofthe above, in the considered opinion of this Court the learned trial Court has not committed any illegality or irregularity in exercising the jurisdiction nor the order passed by the Trial Court Is without jurisdietjon. Therefore, the revision being devoid of substance liable to be and is h®reby dismissed, However, it is observed that the Trial Court shall dwide the issue after recordingthe evidence of both the parties in accordance with law on its own merits. Sd/- N. K. Agarwal Judge