S.B. Civil First Appeal No.120/2010 (Sydney Alexendar & ors. Vs. Miss Klera Disilva and ors.) Dated : 07.10.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Sandeep Kr. Sharma on behalf of Dr. Swati Bhati for the appellants. Mr. MM Ranjan, for the respondents. *** Challenge in this appeal is to the order dated 25th September, 2009 whereby the Additional District Judge (Fast Track) No.5, Jaipur City, Jaipur dismissed the suit of appellants- plaintiffs. 2. The nub of the appellants' story is that the appellants and the respondents are the descendants of Mr. Roumaledo Alexender. Appellants and respondents have an ancestral property at Amritpura Chodpri Hawali, Jaipur North, bearing Khasra No.432, 537 to 542 and 544 to 548, out of which Khasara No. 544 to 548 is a joint private Graveyard of both the parties and the same has been continuing as private graveyard. The ancestors of both the parties are being buried in the same private graveyard since 1940, which stands evinced from Church record also. It is alleged that the respondent No.1 & 2 and respondent Nos.3 & 4, being hand in gloves, filed a suit for partition and injunction in the Court of Additional District Judge No.8, -2- Jaipur City, Jaipur, which was registered at serial No.282/1996. It was averred in the suit that after the death of R.A. Alexendra (Roumaldo Second) the property was transferred to the mother of respondent No.1 to 4 and after the death of their mother, all the four respondents had equal ¼th share in the property. The respondents maliciously got preliminary decree on 9th September, 1996 and final decree on 31st March, 1998 from the Court. The respondent No.2 preferred an ostentatious appeal in the High Court against both the preliminary and final decree, which was dismissed. The appellants came to know about this decree when the appellant Alen Joseph came to Jaipur on 1st December, 2008 and saw the Najir on the site. Aggrieved with the aforesaid proceedings, the appellants- plaintiffs filed a suit before the learned Additional District Judge No.5, Jaipur City, Jaipur for declaration and injunction. The respondents filed an application under Order 7 Rule 11 of CPC stating that the contents of the suit did not disclose the cause of action and hence the plaint deserves to be rejected. The learned Additional District Judge No.5, Jaipur City, Jaipur allowed the application under Order 7 Rule 11 of CPC filed by the respondents and dismissed the plaitiffs' suit, hence this appeal. -3- 3. Heard the learned counsel for the parties and carefully perused the relevant material on record. 4. Learned counsel for the appellants canvassed that the learned trial Court sans framing issues and recording the evidence of both the parties, arbitrarily allowed the application filed under Order 7 Rule 11 of CPC filed by the respondents and dismissed the suit. Learned trial court also did not consider this fact that the preliminary and final decree was obtained by the respondents fraudulently and the learned trial Court in the earlier suit did not appreciate the map submitted by the respondents in right perspective. The facts of the plaint tangibly disclosed the cause of action, despite that, the learned trial Court dismissed the suit. The impugned order is bad in the eye of law, which deserves to be set aside. 5. Learned counsel for the respondents took me through the provisions of Order 21 Rule 101 of CPC and contended that earlier the suit No.282/1996 was decreed by the learned Additional District Judge. The learned Additional District Judge No.8 first passed the preliminary decree and thereafter final decree. Respondent No.2 preferred an appeal against the same in the High Court, which was dismissed. Thus, the decree passed by learned -4- Additional District Judge No.8, Jaipur City, Jaipur on 31st March, 1998 has attained the finality. If the appellants plaintiffs have any objections, they should raise the objections by way of an application before the Executing Court, but no separate suit can be filed. In view of the Provisions of Order 21 Rule 101 of CPC, the instant appeal deserves to be dismissed. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant provisions of law and the material available on record, it is noticed that final decree passed by the Additional District Judge No.8, Jaipur City, Jaipur attained the finality on 31st March, 1998 in Suit No. 282/1996, as the appeal preferred against the same is found to have stood dismissed. 7. Rule 101 of Order 21 of CPC reads as under:- 101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose,the Court shall, notwithstanding anything to the contrary contained -5- in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.” 8. In view of the aforesaid provisions, all questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 are required to be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall be deemed to have jurisdiction to decide such questions. The learned trial Court is found to have rightly allowed the application filed by the respondents under Order 7 Rule 11 of CPC as the suit was not separately maintainable. The impugned order is apt and suffers from no infirmity and the same warrants no intervention. 9. For these reasons, the appeal being bereft of any merit stands dismissed. 10. No order as to costs. (MAHESH BHAGWATI)J. Pcg item No.S-7