ASHWANI KUMAR MISHRA,J. - (1.) This appeal under Section 96 of Civil Procedure Code is directed against the judgment and decree passed by the Additional District Judge, Court No. 2, Agra dated 24.8.2012, whereby plaint filed in Original Suit No. 540 of 2007 has been rejected in respect of property described in Schedule-E of the plaint. Court below has consequently allowed the application filed on behalf of defendant no.1 (Paper No. 165-C), under Order-7 Rule-11 (d) of Civil Procedure Code holding that the suit in respect of property shown in Schedule-E, is not maintainable before the Civil Court. In respect of other properties, the suit remains pending. Aggrieved by such determination, plaintiff-appellant is before this Court in the present appeal.
(2.) Shorn of unnecessary details, it transpires that plaintiff-appellant instituted Original Suit No. 540 of 2007 with the allegation that she is the owner of suit property, disclosed in Schedule A, B &E. Paras 1 to 4 of the plaint is reproduced :- "1. That Kunwar Nasihat Ali Khan, father of the plaintiff and defendants No. 1,2,4 and 5 and grand father of the defendant no. 3, was sole and absolute owner of the property in suit described in Schedule-A of the plaint inter-alia other properties. Smt. Rafiqunnisa Begam wife of Kunwar Nasihat Ali Khan was absolute owner of the property described in Schedule B of this plaint. 2. That Kunwar Nasihat Ali Khan expired in the year 1965 after executing his last Will dated 6.12.1964 in favour of his wife Smt. Rafiqunnisa Begam bequeathing his entire property including the property described in Schedule-A of the plaint with consent of his son defendant no.2, three daughters, defendants No. 4 and 5 and his mother Smt. Zubeda Begam. By virtue of the above Will, Smt. Rafiqunnisa Begam became absolute owner of inter alia property mentioned in Schedule A of the plaint and already being owner of the property mentioned in Schedule B at the plaint, she became owner of the entire property in suit mentioned in Schedule A and B of the plaint and remained in possession of the above properties till her death in the year 1986.
(3.) That properties mentioned at item no.1 to 28 in Schedule A of the plaint lie within the limits of town area Sadabad, District Hathras. In the above properties part is abadi land with constructions existing thereon and part is agricultural holding.;