- (1.) Heard counsel for the petitioners and Sri A.K. Srivastava, learned counsel appearing on behalf of plaintiff respondent. With their consent, this petition is being decided finally, without inviting a counter affidavit.
(2.) The plaintiff respondent instituted Original Suit No. 312 of 2004 for declaration that the she is co-owner to the extent of half share in the suit property bearing House No. B 27/62, Durga Kund, Varanasi and for permanent prohibitory injunction restraining the defendants from interfering in the ownership rights and possession of the plaintiff in the suit property. The plaintiff claimed title to the suit property on the basis of a Will allegedly executed by Durga Vinayak Prasad dated 5 August 1951 in favour of his younger sister Smt. Durga Devi (mother of the plaintiff) and the daughter of his another deceased sister. The suit was contested by the petitioners, who claim themselves to be transferees from defendant No. 2 Smt. Meera Devi, inter alia on the plea that the plaintiff has no cause of action to maintain the suit inasmuch as, under the law, she did not inherit any independent right to the suit property. Their case was that the mother of the plaintiff was only designated as the person who would represent the ultimate beneficiary i.e. the male legal heirs. In view of the pleadings of the parties, the trial Court framed issue No. 11 to the effect whether the suit is liable to be dismissed for want of cause of action and issue No. 12 to the effect whether the plaint is liable to be rejected under Order 7 Rule 11 CPC.
(3.) The trial Court vide order dated 7 February 2014 decided issue No. 12 in favour of the plaintiff whereas, it deferred the decision on issue No. 11, being of the opinion that it is a mixed question of law and fact and shall be decided after the evidence is led by the parties. Aggrieved thereby, the petitioners filed a revision, which has been dismissed by the Additional District Judge, Court No. 11, Varanasi by the impugned order dated 2 April 2015.;