- (1.) This application under Article 227 of the Constitution of India is directed against an order being NO. 31 dated 7th September, 2009 passed by the Learned Civil Judge (Senior Division) First Court at Barasat, North 24 Parganas, in Title suit No. 287 of 2010 by which the application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1, was rejected on contest. The defendant No.1 is aggrieved by the said order. Hence the said defendant has come before this Court with this application under Article 227 of the Constitution of India.
(2.) Heard Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Chatterjee, learned Advocate, appearing for the plaintiff/opposite party. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiff has filed a suit for partition against the petitioner herein as well as the opposite parties No. 2 to 26 claiming his 1/21st share in the properties described in Schedules 'F' to 'H' and 1/42nd share in the properties described in the Schedule 'A' to 'E' of the plaint. It is stated by the plaintiff that all the properties excepting 'A' schedule property, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. Only the 'A' schedule property which is situated at Madhyamgram, P.S. Barasat in North 24 Parganas, is within the territorial jurisdiction of the learned Trial Judge. In fact, the jurisdiction of the learned Trial Judge was invoked by taking the location of the said 'A' schedule property which is within the territorial jurisdiction of the learned Trial Judge. It is further stated by the plaintiff that the properties mentioned in schedules 'F' to 'H' of the plaint were the joint family properties in which the grandfather of the plaintiff was a member and since the parties are governed by the Mitakshar School of Hindu Law, the plaintiff claims to have inherited 1/21st share in those properties. It was further stated by the plaintiff that the properties described in schedules 'A' to 'E' of the plaint were seized and possessed of by Sundarlal Sarda and his brother Kanailal Sarda as joint owners having half share each therein. The plaintiff also claims 1/42nd share in those properties by inheritance. It is further stated therein that since the plaintiff was feeling inconvenience in possessing those properties jointly, the plaintiff demanded partition from the defendant on several occasions and lastly on 25th April, 2007 but since the defendants have refused to partition the said property amicably, the instant suit was filed for partition.
(3.) The defendant No.1 has appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure inter alia praying for rejection of the plaint on the ground that since the Madhyamgram property which is described in schedule 'A' of the plaint is not a Hindu Joint Family property, the plaintiff cannot claim any share in the said property during the life time of his grandfather, namely, defendant No.1. THE said defendant claims that since the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda, the plaintiff cannot claim any interest in the said property by birth. THE defendant thus claims that since admittedly the other properties are not located within the territorial jurisdiction of the learned Trial Judge and further since the plaintiff has no interest in 'A' schedule property, no part of the cause of action for the said suit had arisen within the territorial jurisdiction of the said Court. As such the jurisdiction of the learned Trial Judge cannot be invoked even though the 'A' schedule property is situated within its jurisdiction. THE learned Trial Judge rejected the defendant's said application under Order 7 Rule 11 of the Code of Civil Procedure by holding inter alia that though the defendant No.1 contended that the property mentioned in schedule 'A' of the plaint is his self acquired property but he himself declared the said property before the Income Tax and/or Wealth Tax Authority as karta of Sundarlal Sarda HUF. As such it cannot be decided at this stage as to whether the plaintiff has any share in the said property or not? Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner, submitted that while considering the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, the Court cannot consider any other document save and except the averments made in the plaint. He further submitted that if on consideration of the averments made in the plaint, it appears that the plaint does not disclose any cause of action for the suit, then the plaint is liable to be rejected. Mr. Ray Chowdhury thus invited this Court to consider the averments made in the plaint to ascertain as to whether any cause of action for the said suit has been disclosed in the plaint or not? By referring to the pleadings made out in the plaint Mr. Ray Chowdhury submitted that admittedly all the properties excepting the property at Madhyamgram, P.S. Barasat, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. As such the jurisdiction of the learned Trial Judge cannot be invoked with reference to those properties. He further submitted that, in fact, the plaintiff invoked the jurisdiction of the said Court as the 'A' schedule property i.e. the Madhyamgram property is situated within the territorial jurisdiction of the learned Trial Judge. He however submitted that if on reading the plaint it is found that the plaintiff has any share in 'A' schedule property then certainly he can maintain the said suit at Barasat by including the other properties also in the said suit, even though those are situated beyond the territorial jurisdiction of the Court. But if it is found that the plaintiff has no share in the 'A' schedule property then the Court has no other alternative but to hold that cause of action for the said partition suit has not been disclosed in the plaint. By referring to the averment made in the plaint Mr. Ray Chowdhury pointed out that the 'A' schedule property is not the joint family property belonging to the members of the Undivided Hindu Joint Family governed by the Mitakshar School of Hindu Law. He contended that the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda and since the defendant No.1 is still alive the plaintiff cannot inherit any share in the said property during his life time and as such the learned Trial Judge ought to have rejected the plaint as the plaint does not disclose any cause of action for the said suit.;