ASWATHANARAYANA Vs. LOKESH

JUDGEMENT

(1.) The first defendant in O.S.No.116/2013 on the file of the III Additional Senior Civil Judge and JMFC, Tumakuru has preferred this petition impugning the order dtd. 6/9/2019 whereby the petitioner's application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short 'CPC') is dismissed.

(2.) The first and the second respondents have filed the suit in O.S.No.116/2013 for partition of different immovable properties and according to these respondents, the suit schedule properties are joint family properties which will have to be partitioned with the defendants in the manner asserted by them. The petitioner/first defendant, who is the respondents/plaintiffs' uncle, has filed written statement as well as an application under Order VII Rule 11(d) of CPC. The petitioner's case is that the respondents' father, the sixth defendant before the trial Court, has executed the release deed dtd. 23/3/1979 releasing his interest in the joint family property for consideration. The respondents are born after the execution of the release deed. Further, in a suit instituted by the respondents' maternal aunt, Smt.Renukamma, in O.S.No.5/2002 before the Principal Civil Judge (Senior Division and CJM), Tumakuru, there is a further partition. Therefore, the respondents' suit for partition would be barred and hence the application under Order VII Rule 11(d) CPC.

(3.) The civil Court considering the rival submissions has rejected the application by the impugned order opining that the questions whether the respondents' suit is maintainable or not and whether the plaintiffs are entitled for the relief of partition would have to be adjudicated after evidence is lead by both the parties. The civil Court has also relied upon a decision of the Hon'ble Supreme Court in Mayar (H.K.) Ltd., and Others vs. Owner and Parties Vessel M V Fortune Express and Others, AIR 2006 SC 1828, to conclude that the defence by the petitioner cannot be looked into while considering the application under Order VII Rule 11 of CPC.