KAMAL SINGH Vs. DWARKA PRASAD RAJPUT

JUDGEMENT

(1.) THIS revision application under Section 115 C.P.C. has been filed at the instance of the defendant No.1 against the impugned order dated 14.10.2010, passed by learned Third Additional Judge to the court of Xth Additional District Judge, Bhopal in C.S. No. 118-A/2009, whereby an application under Order 7 Rule 11 C.P.C. of the defendant No.1-applicant has been rejected.

(2.) A suit for declaration and injunction in respect of the agricultural land (description thereof has been mentioned in the plaint) which is the subject matter of the suit filed by the plaintiffs against the applicant and State of Madhya Pradesh. After having served with the summons, an application under Order 7 Rule 11 C.P.C. has been filed by the defendant No.1 saying that the present suit is barred under Section 41 of the Specific Relief Act. This application has been rejected by the impugned order, hence this revision has been filed by the defendant No.1.

(3.) ON the other hand, Shri Sameer Seth, learned counsel for the respondent Nos. 1 and 2/plaintiffs has argued in support of the impugned order and submitted that since a clause has been mentioned in the document of agreement of sale that after the land will be free from all encumbrance including partition it will be sold and because partition has not been taken place, therefore, the present suit is maintainable and at the threshold, the suit cannot be dismissed and therefore, the learned trial Court has rightly rejected the application.