MANJAMMA Vs. JATTAMMA KOM SUBRAY NAIK

JUDGEMENT

(1.) Heard the learned counsel for the petitioner. The respondents No.1 to 3 though served they remained absent and unrepresented.

(2.) I have carefully perused the records. A lady by name Jattamma and Durgamma who are respondents No.1 and 2 herein, have filed a suit against the petitioners, in O.S. No.13/2017 for partition and separate possession of a single suit schedule property i.e., land bearing Sy. No.661A/17 measuring 3 acres situated at Mavalli-I village. In the said suit, the defendants have taken up the contention that the suit is barred under Order II Rule 2 of C.P.C. because the plaintiffs had earlier filed a suit for partition and separate possession in O.S. No.20/1995 if at all this property was also a joint family and ancestral property they would have incorporated this property also for partition and separate possession. As the said property was left out from partition in the year 1995 second suit is not maintainable under Order II Rule 2 of C.P.C. The said contention of the defendants have been taken care of by the trial Court and while framing the issues it framed an issue i.e., issue No.4 with reference to the above said defence taken up by the defendant. Issue No.4 is framed in the following manner, "Whether the defendant No.6 proves that suit is hit by Order II Rule 2 of C.P.C. as averred in paragraph 12 of written statement?"

(3.) The trial Court has treated the said issue as a preliminary issue and after hearing both the parties has held the said issue in the negative holding that the suit filed by the plaintiff in O.S. No.13/2017 is not hit by Order II Rule 2 of C.P.C. The said order is called in question before this Court.