Birendra Kumar, J
1. Vide impugned order dated 09.01.2024 passed in Civil Case No.17/2020, the learned trial court has rejected the prayer of the petitioners to reject the plaint under Order VII Rule 11 CPC.
2. Respondent No.1 had filed the said suit for partition of the joint family ancestral property against his father and other co-sharers.
3. Learned counsel for the petitioners submits that the petitioners had specifically stated in their petition for rejection of plaint that the plaintiffs have no right to seek partition of the ancestral property allotted to the share of the father, during lifetime of the father. The petitioners have further raised that in fact the property was partitioned in the past, therefore, the suit was barred by res judicata.
4. Both the aforesaid points are points to be considered as “issue” in the suit. The plaint cannot be rejected on the aforesaid grounds.
5. There is no dispute that the parties are governed by the Mitakshara school of Hindu law and the property was ancestral property. Therefore, the plaintiffs have coparcenary interest in the suit property and any coparcener up to three degrees from the existing head of the family can seek for partition of his share.
6. Learned counsel for the petitioners has relied on the judgment of the Hon’ble Supreme Court in “Uttam Vs. Saubhag Sing & Ors.” reported in 2016 DNJ (SC) 258.
7. That case was decided on peculiar facts and circumstances of that case, wherein the provisions of Sections 6 & 8 of the Hindu Succession Act was considered. Moreover, that was not a case arising out of rejection or non-rejection of plaint under Order VII Rule 11 CPC.
8. For the aforesaid reasons, this court does not find any reason to interfere with the impugned order. Hence, this civil revision petition stands dismissed.
