IMPORTANT POINT
The right to seek partition is a recurring cause of action, and a fresh suit is not barred by the dismissal of a previous suit for non-prosecution under CPC.

JUDGMENT :

(V. Kameswar Rao, J.) :

This appeal has been filed challenging the order dated 09.02.2018 on I.A.No.IX filed by respondents No.6 to 10 herein under Order VII Rule 11 read with Section 151 of C.P.C., whereby the learned II Addl. Senior Civil Judge and J.M.F.C., Kolar (hereinafter ‘Trial Court’) has allowed the application by passing the following order:

“(a) I.A.No.IX filed by defendant No.6 to 10 U/O. 7 Rule 11 R/W.Sec.151 of CPC is allowed.

(b) The plaint is rejected U/O.7 Rule 11 (d) of CPC as the same is barred under the provisions of Order 9 Rule 9 of CPC.

(c) The plaintiffs are at liberty to seek restoration of O.S.No.534/2007 in Mis.petition No.42/2013.

(d) No order as to costs.

(e) Draw decree accordingly.”

2. The facts as noted from the record are, it was the case of the appellants/plaintiffs in the suit being O.S.No.144/2014 that certain suit properties are ancestral/joint Hindu Undivided Family properties as the same were purchased by the original propositus Sri. Chikkamuniyappa, the father of appellants and respondent No.1. Late Chikkamuniyappa died intestate on 18.10.1994 leaving the appellants and respondent No.1 as his legal representatives to succeed to his estate including the suit properties. It was the case of the appellants that respondent No.1 had obtained registered sale deed dated 29.09.2006 from appellants No.1 to 5 (along with Akkamma W/o Late Chikkamuniyappa).

3. Appellants No.6, 7 and respondents No.3 to 5 had jointly filed a suit for partition in O.S.No.534/2007 before the Principal Civil Judge (Junior Division) at Kolar against respondent No.1 and also against the appellants No.1 to 5 and respondent No.9 herein. The said suit was dismissed for non-prosecution.

4. The appellants had filed the suit being O.S.No.144/2014 on the file of the Trial Court for the following reliefs:

“WHEREFORE, the plaintiffs humbly prays that this Hon'ble Court be pleased to pass the judgment and decree in favour of the plaintiffs and against the defendants in the following manner.

a) For a partition by metes and bounds to the Suit schedule properties and allot 7/8th share to the plaintiffs separately and independently and put the plaintiffs into separate possession of the said 7/8th share in the suit schedule properties.

b) To declare that the registered Release Deed dated: 29/9/2006 vide document No. 3421/2006- 07 of Book I, stored in CD No. ALRD25, registered in the office of the Sub-Registrar, Kolar, obtained by the Defendant No.1 is void and not binding on the plaintiffs I so far as their 7/8th share in the schedule properties.

c) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6823/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the Office of the Sub-Registrar, Kolar, executed by the defendant No.1 in favour of the defendant No.6 in respect of 28 guntas of land (out of total extent of land measuring 1 acre 27 guntas, in Sy. No. 258/1 of Kurugal Village) and 2 acres 12 guntas of land (out of total extent of 7 acres 26 guntas of land in Sy.No. 258/2 of Kurugal Village) is void and not binding on the plaintiffs in so far as 7/8th share in the schedule properties.

d) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6825/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the office of the Sub-Registrar, Kolar, executed by the defendant No.1 in favour the defendant No. 7 & 8 in respect of 25 guntas of land (out of total extent of land measuring 1 acre 27 guntas, in Sy. No. 258/1 of Kurugal village) and 2 acres 22 guntas of land (out of total extent of 7 acres 26 guntas of land in Sy.No. 258/2 of Kurugal Village) is void and not binding on the plaintiff in so far as their 7/8th share in the schedule properties.

e) To declare that the registered Sale Deed dated: 30/03/2007 vide document No. 6826/2006- 07 of Book I, Stored in CD No. KLRD30, registered in the office of the Sub-Registrar, Kolar, executed by the defendant No. 1 in favour the defendant No.9 i