In a suit for partition, if the defence is taken that there has been a partition, the said defence must be tested on evidence- Madras High Court

CRP Nos.2754 & 27521IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.12.2021CORAM:THE HONOURABLE MR.JUSTICE R.SUBRAMANIANCRP Nos.2754 & 27521 andCMP.Nos.20102 & 201021 andCaveat No.44721D.Muthunarayanan... Petitioner in both CRPsVs1.T.D.Ravindran2.T.K.Devanathan Reddiar3.N.Gowri4.C.Lalitha5.R.Amarajothi6.M.Revathi7.Priyadarshini8.Preethika9.Karunandham ... Respondents in both CRPs(R9 represented by his Power Agent Rajendra Prasad)(R2 to R9 are given up)Prayer in CRP.No.27521: Civil Revision Petition filed under Article 227 of the Constitution of India against the order passed in I.A.No.221 in O.S.No.1418 dated 06.10.2021 on the file of the Special Court for trial of cases under the SC STAct Cuddalore and prays to set aside the same.Prayer in CRP.No.27521: Civil Revision Petition filed under Article 1 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521227 of the Constitution of India seeking to strike off the plaint in O.S.No.1418 on the file of the Special Court for trial of cases under the SC STAct Cuddalore.For Petitioner : Mr.A.K.Kumarasamy(In both CRPs)For Caveator : Mr.Gururaj(In CRP.2754 2021) for M s.D.BaskarCOMMON ORDERHeard Mr.A.K.Kumarasamy learned Senior Counsel appearing for the petitioner in both the revisions.2.CRP.No.27521 is against an order made in I.A.No.221 in O.S.No.1418 an application seeking rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The plaintiff first respondent herein filed a suit for partition and separate possession of his 1 4th share in the suit B schedule property claiming that the suit property remained undivided.3.The suit is being resisted by the defendants who are his father and siblings contending that there was a partition in the family on 04.03.1996 and the plaintiff being a party to the same is not entitled to maintain the present suit for partition. Even though the plaintiff did not disclose the said partition in the original plaint. In his counter to the 2 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521application filed under Order 7 Rule 11 of CPC the plaintiff had contended that the partition of the year 1996 was not acted upon and it is sham and nominal document created for the purpose of another suit. The trial Court dismissed the application on the conclusion that the issue as to whether there was a partition or not will have to be decided by the Court only after evidence is let in and the same cannot be a ground for rejection under Order 7 Rule 11 of CPC. Hence these revisions.4.In CRP.No.27521 the petitioner who is the third defendant in the suit seeks the extraordinary remedy of striking of the plaint on the very same ground that was urged in the application under Order 7 Rule 11 of CPC.5.Mr.A.K.Kumarasamy learned Senior Counsel would submit that since there had been a partition of the property belonging to the family on 04.03.1996 the present suit for partition is an abuse of process of Court and the same will have to be rejected.6.I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal. The 3 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521question whether the earlier partition deed is valid or not will have to be decided in the suit after evidence is let in. The validity or otherwise of the document cannot be a subject matter of rejection of the plaint under Order 7 Rule 11. Hence I am unable to find fault with the trial Court for having dismissed the application. 7.The same reasoning would apply to the Revision under Article 227 of the Constitution of India seeking striking off the plaint. In a suit for partition if the defence is taken that there has been a partition the said defence has to be tested on evidence. The Court cannot reject the plaint on the basis of the defence under Order 7 Rule 11. Hence both the revisions fail and they are accordingly dismissed. Considering the fact that the suit is of the year 2018 the trial Court is required to dispose of the suit on or before 30.04.2022. No costs. Consequently the connected miscellaneous petitions are closed.15.12.2021vsIndex: NoSpeaking order 4 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521To:1.The Special Court for trial of cases under the SC STAct Cuddalore.2.The Section Officer VR Section Madras High Court Chennai.R.SUBRAMANIAN J.5 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521vsCRP Nos.2754 & 27521 andCMP.Nos.20102 & 201021 andCaveat No.4472115.12.20216 6 

Summary: “I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal.” These were stated by the single bench of Honourable Mr. Justice R. Subramanian in the case of D.Muthunarayanan v. T.D.Ravindran &amp; Ors. (CRP Nos.2754 &amp; 2755 of 2021). Here in the present case, the suit is being resisted by the defendants, who are his father and siblings contending that there was a partition in the family and the plaintiff being a party to the same is not entitled to maintain the present suit for partition. Even though the plaintiff did not disclose the said partition in the original plaint. In his counter to the application filed under Order 7 Rule 11 of CPC, the plaintiff had contended that the partition of the year 1996 was not acted upon and it is sham and nominal document created for the purpose of another suit. The trial Court dismissed the application on the conclusion that the issue as to whether there was a partition or not, will have to be decided by the Court only after evidence is let in and the same cannot be a ground for rejection under Order 7 Rule 11 of CPC. The single bench of Honourable Mr. Justice R. Subramanian in the case said that I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal. The question whether the earlier partition deed is valid or not will have to be decided in the suit after evidence is let in. The validity or otherwise of the document cannot be a subject matter of rejection of the plaint under Order 7 Rule 11. Hence, I am unable to find fault with the trial Court for having dismissed the application. The same reasoning would apply to the Revision under Article 227 of the Constitution of India seeking striking off the plaint. In a suit for partition, if the defence is taken that there has been a partition, the said defence has to be tested on evidence. The Court cannot reject the plaint on the basis of the defence under Order 7 Rule 11. Hence, both the revisions fail and they are accordingly dismissed. Considering the fact that the suit is of the year 2018, the trial Court is required to dispose of the suit on or before 30.04.2022. No costs. Consequently, the connected miscellaneous petitions are closed.