1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Civil Revision Application No. 3/2009 (Ramchandra Devaji Borkar VERSUS Monali Ramchandra Borkar & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Apurv De, counsel for the applicant. Shri Rahul Kurekar, counsel for the non-applicants. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 18, 2009. Heard the learned counsel for the parties. By the instant application, the applicant challenges the order passed by the Civil Judge (Senior Division), Wardha on 19.10.2008 rejecting an application filed by the applicant for rejection of the plaint under the provisions of Order VII Rule 11 of the Code of Civil Procedure. The respondents had filed a suit for partition and separate possession of the suit property. According to the plaintiffs/respondents, the house property and the field properties, which was the subject matter of the suit, were the ancestral properties. It was pleaded by the plaintiffs that the 2 landed immovable ancestral properties were in possession of the defendant no.1, his mother and his brother and the plaintiffs had 3/15th share in the said properties. Since the defendants had denied to partition the properties and grant the share of the plaintiffs to them, the suit for partition and separate possession was instituted. The defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint. It was stated in the application that Field Survey Nos.240 and 335 of Mouza Pimpalgaon, which were the suit properties, were standing in the name of the mother of the defendant, the brother of the defendant and the defendant himself. It was stated in the application that there was no partition of the field properties between the mother, the brother and the defendant himself and, therefore, there was no cause of action for the plaintiffs for claiming share in the field 3 properties. It was also stated in the application that the house property bearing house No.375 was owned and possessed by the mother of the defendant namely Shantabai and the same was recorded in her name. It was the case of the defendant that the claim of the plaintiffs was hit by the provisions of the Benami Transactions Act as far as the claim to the house property was concerned. The defendant, therefore, sought for the rejection of the plaint. In the reply to the application filed by the defendant under Order VII Rule 11 of the Code of Civil Procedure, it was stated by the plaintiffs that the house property was the ancestral property of the plaintiffs and the defendants though it was shown in the name of the mother of the defendant. It was also stated in the reply that the said property was purchased in the name of Shantabai from the joint family income of deceased Devaji Borkar. It was admitted in the reply that the other field properties 4 were standing in the name of Shantabai, the brother of the defendant and the defendant himself but, it was stated that the said field property was partitioned between the defendant, his brother and his mother and all the three of them were residing separately and maintaining themselves independently. It appears that when the application under Order VII Rule 11 of the Code of Civil Procedure was called for hearing, the applicant/defendant and his counsel were absent. The trial Court, therefore, perused the statements in the application and the reply filed by the plaintiffs to observe that the correctness or otherwise of those statements could be considered only after the perusal of the evidence tendered by the parties. The trial Court observed that the truthfulness of those statements was a matter of evidence and, hence, the application was rejected with liberty to the defendant/applicant to raise the said pleas in the written statement. 5 No fault could be found with the order passed by the trial Court on 13.10.2008. Though the field properties stood in the name of the defendant, his mother and his brother, it was specifically stated in the reply filed by the plaintiff that there was a partition between the defendant, his mother and his brother and the plaintiffs were entitled to a share in the suit property as the property was the ancestral property. Even in regard to the house property, it is the case of the plaintiff that the house property was purchased in the name of Shantabai from the joint family income of deceased Devaji. The trial Court rightly found that the statements of facts made in the application and the reply filed thereto, could be considered only after recording of evidence and no case was made out for rejecting the plaint under the provisions of Order VII Rule 11 of the Code of Civil Procedure. The judgment in the case of Saleem Bhai & others Versus 6 State of Maharashtra & others, reported in AIR 2003 SC 759 and relied on by the counsel for the applicant cannot be of any assistance to the case of the applicant as it merely lays down a general principle of law that an application for rejection of plaint can be decided by the Court on the basis of averments in the plaint. In the instant case, the application under Order VII Rule 11 of the Code of Civil Procedure could not have been allowed on the basis of the averments made in the plaint. Similarly, the judgment in the case of Kamala & others Versus K.T. Eshwara Sa & others, reported in AIR 2008 SC 3174 also cannot be made applicable to the facts of the case. In the result, the civil revision application fails and is dismissed with no order as to costs. JUDGE APTE