JUDGMENT :

1. Heard Ms. Trusha Patel, the learned Senior Counsel assisted by Mr. Nishit P. Gandhi, the learned advocate appearing for the applicant and Mr. Dhaval Vyas, the learned Senior Counsel appearing for the opponents No.1 and 2.

2. The applicant herein has approached this Court under Section 115 of the Civil Procedure Code, 1908 being aggrieved and dissatisfied by the impugned order dated 4.5.2022 passed below Ex.13 by the learned 2nd Additional Senior Civil Judge, Valsad at Vapi in the Special Civil Suit No.9 of 2019 whereby the applicant - original defendant’s application seeking rejection of the plaint came to be rejected.

The opponent – original plaintiff preferred the suit for specific performance under Sections 34 and 38 of the Specific Relief Act and under Section 54 of the Civil Procedure Code, under Section 4 of the Partition Act and under Section 8 of the Hindu Succession Act.

3. The brief facts leading to the filing of the present civil revision application read thus :-

3.1 The opponent – original plaintiff no.1 Kusumben is the widow and original polaintiff no.2 Shitalben is the daughter of deceased Dolatray Kalidas and applicant – defendant No.1 Pankaj Dolatray Desai and his wife Rupaben are the successor and legal heirs of deceased Dolatray Kalidas. The original property as stated in paragraph-2 of the plaint being land bearing Agricultural Tenure No.134 (Old Tenure No. 34) located in ‘Tarakpardi’ village of Vapi Taluka, which was registered in the name of deceased Kalidas Dahyabhai Desai came to be divided amongst his sons, when he was alive and during this partition, the said property was given to late Shri Dolatray Kalidas. Entry No.343, dated 03.06.1969 was effectuated in the land record regarding this partition. Subsequently the names of the respondent and plaintiff No.1 were mutated in the record of rights alongwith the name of late Shri Dolatray Kalidas Desai. Mutation entry was mutated to the said effect was mutated on 25.04.1985. Shri Dolatray Kalidas Desai expired on 25.01.2016, the Plaintiff and respondent being direct and legal heirs Mutation entry No. 551 effectuated on 05.10.2017 regarding the succession of the deceased.

3.2 The property mentioned in paragraph-2 of the plaint is jointly owned and occupied by the Plaintiff and Respondent, which is their ancestral land of agricultural tenure. The Plaintiff and Respondent No.1 had and still have undivided 1/3 share, right and possession over the said property. Though the Plaintiffs have repeatedly requested the Respondent to divide the land as per above mentioned boundaries and get the entries regarding the same effectuated in the land record, the Respondent is not doing so. In view of above, the Plaintiffs are unable to develop the property, hence it is required to partition the said properly lawfully by boundaries and get the entry regarding the same mutated in the land record.

3.3 In view of aforesaid the plaintiff issued notice on 14.09.2018 through their advocate to get the share of the earnings received from the said property and to divide the share of lands of the plaintiffs by boundaries and get entries regarding the same mutated in the land records, within 15 days. Though the notice served to the Respondent, the respondent chose not to act upon the said notice, in view thereof the cause of action arose to institute the present Suit being Special Civil Suit No.9 of 2019.

4. The cause of action for filing of the suit in question read thus (true translation ):-

“(7) The cause of this suit has arose everyday from the date when we - the Plaintiffs had given notice to the Respondent on 14/09/2018 to make partition of the said property and therefore, the Suit is not barred by limitation.

(8) The suit property is of agricultural tenure. The annual cess for the same is Rs. 134 - 35 Paisa and on multiplying the same by twenty, it is Rs. 2,687/-. As per 2/3 share and possession of we – the Plaintiffs, the assessment of the property is Rs. 1,791-

33 Paisa. Co