Madras High Court
A.Sundaramurthy vs Srirangammal on 11 October, 2022
1 CRP.No.4648 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 4648 of 2017
and
CMP.No.21924 of 2017
A.Sundaramurthy ..
Petitioner
Versus
Srirangammal ...Respondent
Civil Revision Petition is filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order dated 15.03.2017 made in
I.A.No.65 of 2015 in O.S. No.25 of 2013 on the file of the District Judge,
District Court No.II, Kancheepuram.
For Petitioner : Mr.S. Prabhu
For Respondent :Mr. Y. Jothish Chander
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1/8
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2 CRP.No.4648 of 2017
ORDER
This Civil Revision Petition has been filed by the petitioner/3rd
defendant seeking to set aside the fair and decreetal order dated 15.03.2017
made in I.A.No.65 of 2015 in O.S. No.25 of 2013 on the file of the District
Judge, District Court No.II, Kancheepuram.
2. The petitioner herein is the 3rd defendant and the respondent herein
is the plaintiff in the original suit.
3. The case of the petitioner is that the respondent herein/plaintiff
filed a suit in O.S.No.25 of 2013 before the District Court No.II,
Kanchipuram, seeking for partition of the suit properties and for allotment
of one share to her. During the pendency of the suit, the 3rd defendant has
filed the application in I.A. No.65 of 2013 under Order 7 Rule 11 C.P.C to
reject the plaint. The same was dismissed by order dated 15.03.2017 by the
Court below. Being aggrieved by the aforesaid dismissal order, the 3rd
defendant has filed the present Civil Revision Petition to set aside the same.
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4. The learned counsel for the petitioner would submit that already
there was a partition effected in the year 1999 itself in the name of brothers
of plaintiff and the same also acknowledged by the plaintiff/ respondent
herein by way of writing, the suit is barred under order 2 Rule 2 of CPC.
After the partition by way of partition Deed in the year 1999, there is no
question of joint Family and joint possession and enjoyment of property
does not arise. Further, the plaintiff has not paid proper Court Fee and filed
the suit having paid Court Fee under Section 37(2) of TNCF & SV Act. He
further relied on the Judgment in the case of "Dr.L. Ramachandran; Dr.
Gayatri Devi Vs. K.Ramesh; K.Suresh; M. Magesh,N.Sekar; N. Sukumar;
G.Shivakumar" reported in 2015(5) CTC 629 (Mad) passed by this Court
wherein it has been observed as follows:
11. The learned Single Judge accepted the fact that the
age of the plaintiffs as given in the plaint if calculated would
show that the youngest plaintiff namely the 6th plaintiff,
attained the age of majority in the year 1992 and the time
limit for questioning the transaction would expire by 1995
and the plaintiffs have launched the proceedings only in the
year 2000 by stating that they verified the records of the Sub-
Registrar and that the transactions have taken place without
joining them as parties and filed the suit within three years
from the date of knowledge. After accepting this factual
position, the Court took note of the decisions of the Hon'ble
Supreme Court in the cases of Ram Prakash Gupta Vs. Rajiv
Kumar Gupta, 2008(1) MLJ 45 (SC); Kamala Vs. K.T.
Eahwara Sa, 2008 (5) MLJ 617 (SC); and C. Natarajan
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Vs.Ashim Bai, 2008(1) MLJ 1278 (SC), and observed that the
decision to be under Article 59 or any other provisions of
limitation Act per se cannot be decisive for the purpose of
determining the question as to whether the suit is barred
under Article 59 or any other Article stated in the Schedule
appended to the Limitation, without any evidence. Further, it
was observed that since the decision to be reached on the
applicability of the Limitation Act is harbouring on the
evidence to be adduced by the parties on a separate issue to
be framed therein, it cannot be decided in application under
Order 7, Rule 1, C.P.C. for the purpose of rejecting the plaint.
Further, it was pointed out that as regards acquiescence
pleaded by the Defendants and other arguments for rejecting
the plaint, the same would depend upon the evidence to be
adduced during the trial, since they are only triable issues to
be decided on evidence.
.....
21. It is to be noted that the transaction efffected was
by the 1st defendant in whose favour the defendants 2 to 4
executed a Settlement Deed. Apart from that there has been
two other transactions in respect of the smaller extents in the
same property executed by the Defendants 2 to 4 which have
not been questioned. The specific case of the defendants 7 &
8 is that they have purchased an extent of 4650 sq.ft of land
from the 5th & 6th defendants on 26.04.1982 and their
vendors, defendants 5 & 6 had purchased the property on
03.10.1979. Thus, we have no hesitation to hold that the
cause of action is absolutely vague and presumably to cover
up the delay and to avoid the Suit being thrown out on the
ground of limitation. Yet, from the admitted averments in the
plaint, the learned single judge found that the suit was barred
by limitation. Therefore, it has to be held that there was no
cause of action for filing the suit in the year 2000, seeking to
set aside the transaction which were done in the year
1979/1982.
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Hence, contended that the suit is not maintainable and liable to be rejected
under Order 7 Rule 11 C.P.C. Without considering the facts and
circumstances of the case and antecedent decisions of this Hon'ble Court,
the Trial Court dismissed the I.A. No.65 of 2015 in O.S. No.25 of 2013
mechanically by order dated 15.03.2017. Hence, it is liable to be set aside.
5. The learned counsel for the respondent would submit that the suit
properties admittedly belonged to the plaintiff's Father Anni Pillai and the
plaintiff is one of the class I legal heirs to her father under Hindu Succession
Act. She is entitled to 1/4th share in all the suit properties. The petition is
devoid of merit and the same is filed only with the intention to drag on the
suit proceedings. He further relied on the decision of the Supreme Court in
the case of "Shakti Bhog Food Industries Limited Vs. Central Bank of India
and another" wherein it has been observed as follows:
"29........ This Court also noted that while deciding the
application under Order 7 Rule 11 CPC, few lines or passage
from the plaint should not be read in isolation and the
pleadings ought to be read as a whole to ascertain its true
import. Even in that case, the trial Court and the High Court
had failed to advert to the relevant averments, as stated in the
plaint, which approach was disapproved by this Court. In the
present case, as noticed earlier, the Trial Court had failed to
advert to and analyse the averments in the plaint, but
selectively took notice of the assertion in the plaint in
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question that the appellant became aware about the
discrepancies in July 2000, and then proceeded to reject the
plaint being barred by law of limitation having been filed in
February 2005.
30. Taking overall view of the matter, therefore, we are
of the considered opinion that the decisions of the Trial Court,
the first appellate Court, and the High Court in the fact
situation of the present case, rejecting the plaint in question
under Order 7 Rule 11(d) CPC, cannot be sustained. As a
result, the same are quashed and set aside.
In view of the aforesaid observation, the Civil Revision Petition is liable to
be set aside.
6. Heard the learned counsel for the petitioner and the learned
counsel for the respondent as well as perused the materials available on
record.
7. Admittedly, the plaintiff filed the suit in O.S. No.25 of 2013 on the
file of the District Court No.11, Kancheepuram seeking for partition of 1/4th
share in the suit property being a legal heir of Anni Pillai against her
brothers after 38 years of her marriage, but the defendant contested that
there is a Registered partition Deed dated 10.05.1999 which was effected in
the name of brothers of plaintiff in the year 1999 itself and accordingly, the
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suit property were possessed and enjoyed by the plaintiff's brothers as per
the said Partition Deed. However, the partition held in the family is to be
proved by oral and documentary evidence since it was not admitted by the
plaintiff. So also the suit is barred by limitation under Order 2 Rule 2 of
C.P.C as such also mixed question of law and facts. Hence, the findings of
Trial Judge need no interference. Mere allegation in the affidavit, is not
sufficient to conclude about the partition held in the family. Hence, the
Revision Petition as such is not maintainable and liable to be dismissed.
Accordingly, the Revision Petition is dismissed. However, the Trial Court is
hereby directed to dispose of the suit in O.S. No.25 of 2013 within a period
of three months from the date of receipt of copy of this order.
8. In the result, this Revision Petition is allowed. Consequently,
connected miscellaneous petition is closed if any. No costs.
11.10.2022
Lbm
Index : Yes/No
Speaking Order : Yes/No
T.V.THAMILSELVI, J.
https://www.mhc.tn.gov.in/judis
Lbm
To
1. The District Judge, District Court No.II, Kancheepuram.
2. The Section Officer, V.R.Section
High Court, Madras.
C.R.P.No. 4648 of 2017
and
CMP.No.21924 of 2017
11.10.2022
https://www.mhc.tn.gov.in/judis
