THE HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.3667 of 2011 Date: 30.09.2011 Between: Madugula Venkata Guramma and two others …. Petitioners and Madugula Mohan Gandhi and others. …. Respondents The Court made the following ORDER: ORDER: The petitioners/defendants 1 to 3 filed this Civil Revision Petition under Article 227 of the Constitution of India to revise the order and decree dated 04.08.2011 passed by VI Additional Junior Civil Judge, Vijayawada, dismissing I.A.No.92 of 2011 in O.S.No.710 of 2010 filed by them for rejection of the plaint under Order VII Rule 11 and Section 151 C.P.C. The first respondent/plaintiff filed the above suit for partition of the plaint schedule property viz., 90 square yards of house site with a Madras terrace into seven equal shares and for allotment of one such share to him by metes and bounds. It is stated that late Madugula Rambabu, who is the father of the plaintiff and defendant Nos.2 and 4 to 7, and husband of the first defendant, purchased the plaint schedule property with his own funds, but he got registered the same in the name of the first defendant, with an understanding that it would devolve upon his heirs in equal shares on his death and the first defendant being the mother would divide the said property equally. It is also stated that the said Rambabu died intestate; that defendant Nos.4 to 7 were married and living with their respective spouses and that the second defendant, who was staying with the first defendant, influenced her, got registered a gift deed in her favour in respect of the plaint schedule property and thereafter sold the same to the third defendant citing herself as the absolute owner, under registered document No.3861/2008, dated 29.07.2008. It is further stated that in spite of repeated demands for partition of the suit schedule property, the first defendant did not respond and hence, the plaintiff got issued legal notices to the defendants on 03.02.2010 and 10.02.2010. Since the defendants sent their replies with untenable contentions, the plaintiff filed the above suit. Defendant Nos.1 and 2 contested the said suit by filing a written statement, whereas the third defendant filed separate written statement. Pending the suit, defendant Nos.1 to 3 filed the above Interlocutory Application for rejection of the plaint stating that the suit is barred by limitation as the gift deed was executed by the first defendant in favour of the second defendant on 15.07.2004; that the first respondent/plaintiff is neither a party to the gift deed dated 15.07.2004 nor the sale deed dated 29.07.2008, which was executed by the second defendant in favour of the third defendant; that the first respondent/plaintiff ought to have paid the court fee on the aggregate amount for the reliefs sought for and that the plaint does not disclose any cause of action to entertain the suit and as such the suit is liable to be rejected. The Court below, after considering the arguments at length, by the impugned order, held that when the relief of partition is the larger relief and the court fee paid on the said relief covers the other reliefs also, namely, to cancel the gift deed executed by the first defendant in favour of the second defendant and the sale deed executed by the second defendant in favour of the third defendant, there is no need to pay court fee for cancellation of a consequential relief and that the cause of action shown by the plaintiff has to be accepted and by following the judgment of the Apex Court in Sonamekala Anjaneyulu v. Kurra Sambrajyam(2004 (1) ALD 846) dismissed the Interlocutory Application. Learned counsel for the petitioners contends that the cause of action shown in the plaint does not mention anything about the gift deed and sale deed and therefore, there is no cause of action for cancellation of the gift deed and sale deed and that the suit is barred by limitation since the gift deed was executed by the first defendant in favour of the second defendant in 2004, whereas the suit is filed in 2010. It is well settled that for rejection of the plaint, the averment in the plaint alone has to be taken into consideration as to whether the plaint averments disclose the cause of action and the suit is barred by limitation or not and the possible defence of the defendants in the suit cannot be taken into consideration for rejection of the plaint. No doubt, at paragraph No.6 of the plaint averments the plaintiff stated that his deceased father-Madugula Rambabu purchased the plaint schedule property with his own funds and got the same registered in the name of the first defendant. But, on the death of Rambabu, whether the suit schedule property becomes absolute property of the first defendant or not has to be decided in the suit, for which, the petitioners/defendants can always take necessary pleas in that regard. In view of the same, the discretion exercised by the lower Court in dismissing the Interlocutory Application does not suffer from any illegality warranting interference by this Court. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J Date: 30.09.2011 va