-77 HIGH COURT OF CHHATTISGARH AT BILASPUR Revisionors Defendaats No. l to 3 Clvil Revision No. 99/2010 1. Netram S/o Sahas Ram Luniya aged 45 years, Non-applicant Plalntiff Npn-applicant Defendant No. 4 2. Baisakhu S/o Sahas Ram Luniya aged 43 years, 3. Rambahoran S/o Sahas Ram Luniya aged 55 years, Three R/o VUlage Bhadoriya Khar, Barpali Po. Semartal TahsU & District BUaspur (C.G.). Siat. Mehatnn Bai D/o Shri Santram Luniya aged about 50 years, R/o VUlage Bhadoriya, Khar, BarpaU Po. Semartal Tahsil 85 District BUaspur (C.G.j. 2. State of Chhattisgarh through Collector, Bilaspur, C.G. V/s 1. CIVIL REVISION UNDBR SECTION 115 OF THB CODB OF CIVIL PROCBDURE. (SB :Hoa'ble Mr. T.P.Sharma, J.) Present:- Shri Vijay Kuiaar Mishra, Advocate for fhe revisionors/petitioners. ShriU.K.S, Chandel, P.L. forthe State/non-applicaat No. 2. Non-applicaat/respondent No. 1 not noticed. ORAL ORDBR (Passedon 29/09/2010) 1. Bv tfais civfl revision under Section 115 of the Code of CSvil Procedure, (tn short the Codel petitioners has chaUenged the legalify and propriety of fhe order dated 9/8/2010 passed by 4th Civil Judge Class-I, Bilaspur in civil suit No. 12-A/08 whereby leamed 4th CivU Judge Class-I, BUaspur has decided the preliminary issue as^tfsitive against the petitioners. E^ii "Steh *7S> 3. Brief facts necessary for disposal of fhis revision is, petitioners and respondent No. 1 are brofhers and sister. Fafher of petitioners and respondent No. 1 Sahas Ram Luniya having immovable property, during his life time he has illegality transferred some property. After death of her father property owned by her fafher was succeeded by petitioners and respondent No. l. Respondent No. 1 has filed suit for declaration of her one foiirth share over property left by her father. By flling written statement present petitioners have denied the aUegations made in plaint and have alleged fhat alfhough thetr father was having property but partition took place during left time of thetr father. They have also acquired property during life time of his father and even deafh of his father therefore on the date of death of their father nofhing was owned by theu- father therefore the present suit is not maintainable. They have also fUed petition under Order 7 Rule 11 of tfae Code for dismissal of suit as not maintainable same was dismissed. Civil Revision No. 113/2007 was preferred whlch was disposed ofwith direction that trial Court is required to frame issue and decide fhe issue. Trial Court has framed additional fesue JVb. 6 that whether sv.it is maintaindble?. Bv order tmpugned trial Court has decided issue as positive on the ground that bofh the parties have denied allegation of each other. In fhese circumstances without adducing the evidence the question of maintauiabUity of the suit can not be decided. ...A... sa!f*" J 4. 5. 6. 7, Shri Vljay Kumar Mishra, Advocate for the revisionors/petitioners and Shri U.K.S. Chandel, P.L. for the State/respondent No. 2. are heard. Copy ofrevision memo and ofher documents perused. Leamed counsel for the petitioners submits that although maintainability of suit is required to be exaiiiined ui the Ught of allegation made in the plaint but after filing of the written statement and documents Court are also required to consider fhe pleading and document of the defendants. As per nutshell case of the respondent No. 1/platnttff her father was having tmraovable property and he died leawag such property being a daughter she is entiUed for one forth share over the property left by her father along with her three brothers. At this stage it cannot be declared that respondent No. 1 is entitled for how much share even if case fhe suit is decided exparte, but in accordance with Hindu Succession Act, 1956 defmitely daughter is also entitled for share after deafh of her father. Iri fhe present case parties has not admitted fhe case of each other but have made contradictoiy allegation relating to property owned by fhetr father, property left by their fafher at the time of his death and entiUement of share of respondent No. 1. Considering thetr pleadings Coiirt are requtred to decide the question on the basis ofevidence adduced on behatf of the partles including question fhat whether suit was not maintainable in absence of cause of action. I*^^K^s^^;.<t "V^-ty'' • ^^.... "'•'••'..-,- ''^i..?^'^"'' -V 9. In fhe present case issue of maintainabUity of the suit is not a pure question of law but is a mixed question of facts and law therefore trial Court has rightly held .fhat wifhout providing an opportunity of adductng evidence the decision of this issue woiild not be possible but has committed Ulegallty m decidmg fhe issue as positive which is a techrucal error fherefore, I do not find any substance and any grave iUegality in the order impugned except aforesald techiucal error. ConsequenUy, with the observation that aforesaid additional issue No. 6 is a mtxed question of law and facts therefore it cannot be decided as preliminary issue and Court below is reqi.ured to decide the issue along wifh other issues, civU revision is stands disposed of. 10. All interim. applications are also dismissed. 11. No order as to costs. Sd/- T.P. Sharma e