D.VICTOR Vs. BARATHI SUNDRAM

JUDGEMENT

(1.) The petitioners who are defendants in O.S.No.5/2014 on the file of the Senior Civil Judge and JMFC at Kollegala are before this Court in this revision petition under Section 115 of the Code of Civil Procedure, aggrieved by the order dated 24.11.2014 passed on I.A.No.2 by which, the application filed under Order VII Rule 11(d) read with Section 151 of CPC is rejected.

(2.) Respondents 1 to 5 are plaintiffs in the above stated suit which is filed for grant of preliminary decree for partition and separate possession of 1/5th share of plaintiffs in the suit schedule property. On issuance of suit summons, the defendants appeared before the Court and filed written statement contending that the suit schedule property is not a joint family property. Further, the defendants/petitioners herein contended that the plaintiffs and all the defendants are Christians by birth and Indian Successions Act applies to them. Thereafter, the defendants filed I.A.No.2 under Order VII Rule 11(d) of CPC praying for rejection of plaint as barred by law. In the affidavit accompanying the application, it is specifically contended that the plaintiffs and all the defendants belong to Christian Community by birth and Indian Succession Act would apply to them. It is also stated that there is no joint family concept or co-parceners among the Christians. Further it is stated in the affidavit that one Robert, brother of the plaintiffs' father had initiated proceedings before the Land Tribunal for grant of occupancy rights which was dismissed, against which, writ petition was filed which was also dismissed. Thereafter, the said Robert filed a suit in O.S.No.255/2008 which was also dismissed, against which, Regular Appeal and Regular Second Appeals filed came to be dismissed. In that situation, it is stated that the present suit would not be maintainable and prayed for rejection of the plaint. Opposing the said application, the defendants filed objections contending that initially the suit schedule property was purchased by one Lingappa grand- father of the plaintiffs and defendants. It is further stated that the suit schedule property is a joint family and undivided property of the plaintiffs and defendants. The trial Court on consideration of the application, after hearing the parties under the impugned order rejected the application. Against which, the petitioners are before this Court in this revision petition under Section 115 of CPC.

(3.) Heard the learned counsel Sri.Rama Mohan A, for petitioners and learned counsel Sri.Pradeep Naik for respondents who are physically present before the Court.