C E SATHYANARAYANA REDDI Vs. C E SULOCHANA

JUDGEMENT

(1.) M. Chockalingam, J.Challenge is made to the judgment of the learned Single Judge of this Court made in O.A.No.3328 of 2007 in C.S.No.129 of 2007. By the said judgment, the order of rejection of C.S.No.129 of 2007, a suit for partition, was made, by allowing the application in A.No.3328 of 2007.

(2.) THE appellant/plaintiff filed the said C.S.No.129 of 2007 for partition seeking 1/5th share in the plaint schedule property with the following averments.THE suit properties were purchased by the father of the plaintiff C.E. Reddi in the name of his wife, the first defendant. THE properties were purchased by C.E. Reddi, out of the joint family funds. On his death, they were to be divided among the plaintiff and the first defendant/ wife and the children shown as the other defendants. In view of the misunderstanding among the family members, an oral partition was effected in the year 1987. As per the oral partition, the western portion of the Schedule Item-I along with garage was allotted to the plaintiff, while the eastern part was retained by the defendants 1 and 2. When such a division was orally made, the western portion was allotted to the plaintiff, since he was the eldest son and without the knowledge of the plaintiff, Item-II schedule was allotted to defendants 3 and 4 by the first defendant. While the matter stood thus, the first defendant filed C.S.No.719/2005 for delivery of vacant possession of the western portion of the property at Item No.1 from the plaintiff and also for the mesne profits from the plaintiff. Hence, there arose a necessity for the plaintiff to file a suit for partition for 1/5th share in item Nos. 1 and 2 of the plaint schedule properties.

(3.) IT is true that the plaintiff has averred in the plaint that ITem-I was subjected to oral partition already but it remains to be stated that the same was denied by the respondent. Under such circumstances, there arose necessity for filing the suit for partition. IT is not correct to state that the plaintiff has not putforth the plea that ITem-2 was a joint family property liable for partition while defending O.S.No.8620/1996 and the conclusion so arrived was illegal and uncalled for. In fact ITem No.2 was never a subject matter of O.S.No.8620 of 1996. IT was too earlier even without letting in evidence, the learned Single Judge has accepted the case of the first defendant as the absolute owner when the said issue could not have been a matter of dispute in the earlier proceedings in C.S.No.8620 of 1996. The learned Single Judge has relied on a partition deed dated 5.3.1962 marked as Exs.A7 and A8 in O.S.No.8620 of 1996. and pressed them into service in determining the application for rejection of the plaint. IT was thoroughly erroneous. The appellant should have been given a chance to test the veracity of the partition deed since he was not a party in that suit. While rejecting the plaint under Order VII Rule 11 of the Civil Procedure Code, the learned Single Judge has not exercised the discretion judicially. The learned Single Judge has foreclosed the issue whether ITem No.1 of schedule property was a self acquired property of the first defendant without determining the same, on evidence and by accepting the contention putforth by the first defendant. While the learned Single Judge was convinced that the plaintiff should be granted liberty to putforth his claim for partition in the suit filed by the first respondent, it should not have rejected the plaint and instead should have proceeded with both the suits viz., C.S.No.129 of 2007 and C.S.No.719 of 2005 and thus, the order of the learned Single Judge has got to be set aside.