The main legal point established in the judgment is the requirement for evidence to determine the status of the suit property and the relevance of the plaintiff's non-involvement in the sale deed dtd. 23/3/2006 in a partition suit.

JUDGMENT :

R. Nataraj, J.

1. These Revision Petitions are filed by the defendant No. 7 in O.S.No. 2791/2010 pending trial before the IX Additional City Civil and Sessions Judge, Bengaluru (henceforth referred as 'Trial Court') challenging an order dtd. 12/2/2016, by which an application filed under Order VII Rule 11(a) and (d) of CPC was rejected.

2. A suit in O.S.No. 2791/2010 was filed for partition and separation possession of the undivided right title and interest of the plaintiff in suit schedule property. The suit was contested by defendant No. 7, who also filed an application under Order VII Rule (a) and (d) of CPC to reject the plaint.

3. Defendant No. 7 contended in the application that the suit property was purchased by Melappa the grandfather of the plaintiff in terms of the sale deed dtd. 1/3/1946 and that defendant No. 1 was his only son, who succeeded to the property. Thus, it was contended that the said property was the absolute property of defendant No. 1. It is claimed that defendant No. 1 had executed an agreement of sale in favour of defendant No. 7. After a partition between the family members, the defendant Nos.2 and 3 had executed a sale deed dtd. 23/3/2006 in favour of defendant No. 7 in respect of an area measuring 60 ft x40 ft. It was also contended that the plaintiff was not a Class-I heir of Melappa and therefore there was no cause of action for filing the suit. It was also contended that plaintiff had not sought for cancellation of sale deed dtd. 23/3/2006.

4. The Trial Court after considering the plaint averments held that question regarding cancellation of sale deed would be considered only after evidence is recorded and cannot be based on the pleadings and contentions of the learned counsel. The Trial Court also held that whether the defendant No. 1 had received said property in his individual capacity or it was thrown into the common hotchpotch would be the matter of evidence". The Trial Court therefore rejected the application in terms of the impugned order.

5. Being aggrieved by the aforesaid order, the petitioner has filed these two revision petitions. Learned counsel for the petitioner submitted that a perusal of the plaint itself indicated that the suit property was purchased by Melappa in the year 1946 and that defendant No. 1 was his only son, who succeeded to the suit property. Therefore, he contended that the land in question was the absolute property of defendant No. 1. Therefore, he contended that the plaintiff cannot claim any share. He therefore contended that the suit for partition was not maintainable. He also contended that the plaintiff ought to have sought for cancellation of sale deed dtd. 23/3/2006 executed by defendant Nos.2 and 3.

6. Per contra, learned counsel for the plaintiff submitted that an application under Order VII Rule 11(a) and (d) of CPC needs to be considered only on the averments made in the plaint and not on the assertion made by the defendants in their written statement. He submitted that plaintiff did not accept that defendant No. 1 possessed the suit property as his absolute property. He submitted that there was no statement in the plaint that indicated that the suit property was absolutely owned by defendant No. 1. In that view of the matter, he claimed that Trial Court was right in rejecting the application filed Under Order VII Rule 11(a) and (d) of CPC. He also submitted that since the plaintiff was not a party to the sale deed dtd. 23/3/2006, the question of cancellation of sale deed would not arise as the said sale deed would not bind the interest of the plaintiff.

7. Heard the submissions of learned counsel for parties.

8. A perusal of plaint discloses the following averments:

"2. The plaintiff humbly submits that the first defendant is the father of the plaintiff, the defendants 2 to 4 are the elder brothers of the plaintiff, the defendants 2 to 4 are the elder brothers of the plaintiff and further the defendant No. 5 is the elder sister of the plaintiff.

3.