SANGEET LODHA,J. - (1.) This petition is directed against order dated 22.9.17 passed by the Additional Civil Judge No. 1, Bikaner in Civil Suit No. 384/15, whereby an application preferred by the petitioner under Order 7, Rule 11 read with section 151 CPC seeking rejection of the counter claim, stands dismissed.
(2.) The petitioner filed a suit for permanent injunction against the respondent in respect of the ancestral house alleged to have been fallen in his share pursuant to oral partition effected by his grand father. That apart, the petitioner also claimed right over the disputed property on the strength of Will executed by his grand father Shri Girdhari Lal. The respondent-defendant who is brother of the petitioner-plaintiff filed the counter claim seeking injunction against the petitioner-plaintiff claiming right over the disputed house alleged to be in his possession on the strength of a gift deed dated 10.9.07 executed by his grand father.
(3.) The petitioner preferred an application seeking rejection of the plaint on the ground that while allowing the application preferred seeking temporary injunction, the court has arrived at a categorical finding that the petitioner is in possession of the property and thus, the suit preferred by the respondent belatedly on the strength of the gift deed when he is not in possession of the property, is barred by provisions of section 41 (h) of Specific Relief Act.;