TMI Blog2022 (3) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication or written statement, cannot be looked into for the purpose. Further, the suit or the part thereof, can be disposed of on the basis of pure legal issue whether under Order 7 Rule 11 or under Order 14 Rule 2 of Code of Civil Procedure if the same can be decided without taking evidence of the parties. However, the mixed issues of law and facts cannot be decided preliminarily and in that situation, the court has to decide all the issues after the evidence is adduced by the parties. Indisputedly, present suit has been filed claiming the suit property as Joint Hindu Family Property and as per the legal position expounded in the judgment cited on behalf of the respondent/plaintiff, the bar of Section 4 of Benami Transaction Act 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They may take all the grounds as to maintainability of the present suit. The trial court shall not grant any further adjournment for the purpose. After filing of written statement, the trial Court, without further loss of time, shall frame the issues - CR No. 754 of 2019 - - - Dated:- 7-3-2022 - SATISH KUMAR SHARMA , J. Shri V.K.Bhardwaj, Sr.Advocate with Shri Rohit Batham, counsel for the petitioners Shri Sumant Mishra, counsel for the respondent no.1. ORDER 1. This Civil Revision has been filed against the order dated 25.9.2019 passed by learned XIV Civil Judge Class I, Gwalior in Civil Suit No.11A of 2019 (Manish Gupta Vs. Smt. Shakuntala Agarwal and Others), whereby, the application filed by the petitioners/def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit for declaration of the sale deed as null and void has been filed after fourteen years of the execution of the sale deed which is per se beyond limitation. 5. The suit has been filed on the premise that the suit property was purchased from the corpus of joint family in the name of mother and the mother alone was not competent to sell the same. Thus the suit has clear allegation of Benami Transaction and accordingly, the same is barred by Section 4 of the Benami Transaction Prohibition Act, 1988. 6. The plaintiff has not sought relief of possession from the petitioners and accordingly, the suit is not maintainable as per proviso to Section 34 of the Specific Relief Act. 7. The plaintiff has not adequately valued the suit wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. He has placed reliance upon the judgments rendered by Hon'ble Apex Court in the cases of Chhotanben and another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others reported in (2018) 6 SCC 422 and Pawan Kumar Vs. Babulal since deceased Through Lrs and others reported in (2019) 4 SCC 367. 11. Heard. Considered. 12. This is a well settled legal position as expounded by Hon'ble Supreme Court in the case of Nusli Neville Wadia Vs. Ivory Properties and Others reported in (2020) 6 SCC 557 that, for disposal of an application filed under Order 7 Rule 11 of CPC, the averment of plaint can only be taken into consideration. The version of defendant (s), either in their application or written statement, cannot be looked into for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser has not been sought by the plaintiff, therefore, the suit is not maintainable as per proviso to Section 34 of the Specific Relief Act, but such objection was not raised before the trial court, therefore, this court cannot consider the same at this stage. However, the defendants can take such objection in the written statement which shall be suitably dealt with by the trial court in accordance with law. 16. The learned trial court has primarily concluded that the valuation of the suit has been made properly and adequate court fee has been paid accordingly. The issue of court fee has also been kept open for the later stage, therefore, looking to the frame of plaint, the finding with regard to court fee cannot be faulted with at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
