IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CIVIL REVISION APPLICATION NO. 181 OF 2008 CIVIL REVISION APPLICATION NO. 181 OF 2008 CIVIL REVISION APPLICATION NO. 181 OF 2008 1. Shri Ramesh Bapu Burud, 2. Smt.Manisha Ramesh Burud, 3. Shri Shivgonda(Sidha) Hari Shedbale. ... Applicants. V/s. 1. Shri Rau Hari Shedbale, 2. Shri Bhau Hari Shedbale. ... Respondents. Satyajeet Mirajkar for the applicants. S.S.Patwardhan for the respondents. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 16th July 2008. DATED: 16th July 2008. DATED: 16th July 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the applicants and learned counsel for the respondents. 2. The present revision is directed against the order dated 15th December, 2007 passed by the Joint Civil Judge, Junior Division, Kagal rejecting application under order 7 rule 11 of Code of Civil Procedure, 1908 ("C.P.C." for short) wherein the applicant had prayed for rejection of the plaint. 3. The suit is for declaration and injunction. Declaration with respect to right of pre-emption is sought; whereas decree of permanent injunction is also claimed since the plaintiffs are claiming to be in possession of the suit premises. 4. Having heard learned counsel for the applicants, having gone through the papers and the impugned order, prima facie; none of the contentions raised by applicants is sustainable. 5. Assuming for the sake of argument that the applicants may be right in contending that no question or issue touching the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("Fragmentation and Consolidation Act" for short) can be tried in the suit, in that event, at the most part of the suit may not be maintainable. But, so far as the suit praying for decree of permanent injunction is concerned, the same is very much maintainable. 6. In the above view of the matter, merely because part of the decree cannot be granted in favour of the plaintiffs that by itself cannot be a ground to reject the plaint. The suit will have to be tried on its own merits. The issues will have to be framed. - 3 - Ultimately, if the trial Court comes to the conclusion that the suit is hit by the provisions of the Fragmentation and Consolidation Act, in that event, the declaratory relief may be denied to the plaintiffs. At any rate, the plaint cannot be rejected at this stage merely because it may not be tenable. The observations made in this behalf are prima facie. The revision is liable to be dismissed since the impugned order is legal and proper. 7. Needless to mention that the findings recorded by the Court below in the impugned order will not come in the way of the plaintiffs or the trial Court while deciding the issues on merits after full trial of the suit. 8. In the result, revision application is dismissed in limine with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)