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2019 DIGILAW 2052 (MAD)

Subramani v. Kaliappan

2019-08-07

ABDUL QUDDHOSE

body2019
JUDGMENT : 1. The instant civil revision petition has been filed challenging the order dated 12.02.2014 passed by the learned Additional Subordinate Judge, Tindivanam in I.A.No.42 of 2013 in O.S.No.26 of 2013. Brief facts leading to the filing of the instant revision under Section 115 of the code of civil procedure: 2. The petitioners are the defendants 1 to 4 in the suit O.S.No.26 of 2013 pending on the file of the Additional Sub Court, Tindivanam. The said suit was filed by the respondent for partition in respect of the suit schedule properties as he claims that the suit schedule properties are ancestral properties and he has shares in the same along with the petitioners/defendants. The petitioners/defendants filed I.A.No.42 of 2013 in O.S.No.26 of 2013 under Order 7 Rule 11 CPC seeking for rejection of plaint filed in O.S.No.26 of 2013 on the ground that there is no cause of action, since the suit schedule property has already been allotted to the petitioners/defendants under a oral partition which has been affirmed by a document dated 10.04.1989. It is also the case of the petitioners/defendants that the respondent/plaintiff has accepted the said oral partition and it was also acted upon by the respondent/plaintiff. 3. As seen from the counter affidavit filed in support of I.A.No.42 of 2013, the statement of the petitioners/defendants has been disputed and according to the respondent/plaintiff, there is no oral partition between the family members as alleged by the petitioners/defendants in I.A.No.42 of 2013. 4. By order dated 12.12.2014, the learned Subordinate Judge, Tindivanam dismissed I.A.No.42 of 2013 in O.S.No.26 of 2013 on the ground that the issues raised by the petitioners/defendants are triable issues and can be gone into only at the time of trial. Aggrieved by the dismissal of I.A.No.42 of 2013 in O.S.No.26 of 2013, the instant Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure. 5. Heard Mr. D.Ravichander, learned counsel for the petitioners and Mr.S.Kaithamalai Kumaran, learned counsel for the respondent. Discussion: 6. Admittedly, the documents relied upon by the petitioners/defendants in I.A.No.42 of 2013 have not been marked as exhibits in the impugned order. Further, the respondent/plaintiff in the plaint has categorically pleaded that the suit schedule properties are the ancestral properties and no previous partition has taken place between the parties to the suit. Discussion: 6. Admittedly, the documents relied upon by the petitioners/defendants in I.A.No.42 of 2013 have not been marked as exhibits in the impugned order. Further, the respondent/plaintiff in the plaint has categorically pleaded that the suit schedule properties are the ancestral properties and no previous partition has taken place between the parties to the suit. The Trial Court has considered this aspect and only thereafter, had dismissed I.A.No.42 of 2013 filed by the petitioners/defendants under Order 7 Rule 11 CPC. 7. This Court is in agreement with the view taken by the Trial Court in the impugned order and does not find any merit in this revision. 8. It is also submitted by the learned counsel for the petitioners that the pleas raised in the affidavit filed in support of I.A.No.42 of 2013 has already been taken in the written statement filed by the petitioners/defendants in the suit O.S.No.26 of 2013. This being the case, the Trial Court while deciding the suit, after trial, will have to necessarily consider all the issues raised by the petitioners/defendants in I.A.No.42 of 2013. Conclusion: 9. In the result, there is no infirmity in the order passed by the Trial Court. Accordingly, the Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. However, a direction is given to the Trial Court to dispose of the suit within a period of six months from the date of receipt of a copy of this Order.