1 2025:CGHC:13549 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 128 of 2023 1 - Hardeep Singh Rajpal S/o Late Preetam Singh Rajpal, R/o Opposite Ashok Medical Store, Main Road Korba, Chhattisgarh Pin-495677,.... (Petitioner/defendant) ... Petitioner(s) versus 1 - Amarpal Singh S/o Late Rajendra Singh R/o Beside Santoshi Saree Sale, Itwari Bazar, Rani Road Korba, Korba, Chhattisgarh, Pin-495677,.... (Respondent/plaintiffs) ... Respondent(s) For Applicant : Mr. Vivek Tripathi, Advocate For Respondent : Mr. Rishi Sahu, Advocate SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board 21/03/2025 1. This Civil Revision has been preferred against the impugned order dated 25.7.2023 passed by the Civil Judge Class-II, Korba District Korba (CG) in Civil Suit No.58-A/2021, whereby, the application SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.03.22 13:42:17 +0530 2 preferred by the petitioner/defendant under Order 7 Rule 11 of the CPC, was dismissed. 2. Necessary facts of the case are that the respondent/plaintiff filed a Civil Suit for declaration of title and permanent injunction on the basis of a ‘Will’ dated 24.1.2019 executed by Smt. Amrit Kaur Rajpal, grandmother of the plaintiff, in his favour and also to declare Relinquishment Deed dated 26.9.2001 executed by deceased Amrit Kaur Rajpal in favour of the defendant as null and void. In the said Civil Suit, the defendant/petitioner herein filed an application under Order 7 Rule 11 of the CPC, and raised an objection that the plaintiff is not in possession of the suit land, therefore, the suit is not maintainable in view of the proviso to Section 34 of the Specific Relief Act, 1963. Since the plaintiff did not seek a relief of possession and also no valuation was made thereof, the trial Court dismissed the aforesaid application. Hence, this Revision. 3. Learned counsel for the applicant would submit that in the order impugned, the trial Court has observed that the subject property is ancestral and the plaintiff is the co-owner of the said property, therefore, he is not required to claim the relief of possession He would further submit that there is no such pleading of the plaintiff that the suit property is the joint property of the parties instead the plaintiff has filed a Civil Suit on the basis of a Will for declaring himself as the sole owner of the subject property. Therefore, if the plaintiff is not in possession of the property in question, the suit, in its present form, is not maintainable as the same is barred by law. Hence, the trial Court has wrongly dismissed the application. 4. Per contra, learned counsel for the respondent/plaintiff would support 3 the order impugned. However, he fairly admits that in the plaint, there is no such averment that the subject property is the joint property and the plaintiff is seeking a declaration of sole title to the subejct property based on a Will executed by Amrit Kaur Rajpal. Lastly, learned counsel submits that this Revision has no substance, therefore, he prays to dismiss the same. 5. Heard learned counsel for the parties and also perused the documents annexed with the Revision. 6. It is well settled that while considering an application under Order 7 Rule 11 of the CPC, the Court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the CPC. The Court has to presume the facts stated in the plaint as correct. The Court cannot look into the defence set up by the defendants in their written statement or the application. For the purpose of deciding an application under this Rule, it is only the facts pleaded in the plaint which are to be taken into account and if on the basis of those facts the Suit comes within any of the infirmities enumerated in Order 7 Rule 11 of the CPC, then alone the plaint is liable to be dismissed. 7. Admittedly, the plaintiff has initiated a civil suit, seeking a court declaration confirming his absolute ownership and title to the property in question based on the Will dated 24.1.2019 executed in his favour and further to declare that the Relinquishment Deed dated 26.9.2001 executed by deceased -Amrit Kaur Rajpal in favour of the defendant as forged and the same is null and void. Further, based on the Will, a declaration regarding possession has also been sought. 4 8. Since the defendant has taken a specific plea that the plaintiff is not in possession of the subject property, the trial Court may form an issue in this regard after filing of the written statement, which shall be enquired during the trial. Even if the plaintiff is not in possession, the Court may direct him to amend his pleadings and correct the valuation if the suit is at an initial stage, allowing for a fair determination of the case. 9. For the foregoing reasons, this Court of the view that the grounds raised in the subject application, do not warrant ordering the plaintiff to be non-suited. 10. Furthermore, the observation made by the trial Court that the subject property is the joint property is not correct. Hence, the trial Court is directed to frame appropriate issues and decide the same in light of the evidence adduced thereof. 11.With the aforesaid observations/directions, this Revision is disposed of. The applicant would be at liberty to take all such grounds, after framing of the appropriate issues in view of the proviso to Section 34 of the Act, 1963, at the appropriate stage. Sd/- (Deepak Kumar Tiwari) Judge Shyna