Suit should be considered on the basis of averments made in the plaint.

R. BANUMATHI, J.

Whether even on the Plaint averments the Suit is to be rejected is the question raised for consideration in this Application.

2. The respondent/plaintiff has filed the Suit for partition and separate possession of his l/5th share in the Suit Schedule Items (1) and (2) properties on the basis that the properties are the joint family properties of his father C.E. Reddi and therefore, he is entitled to 1/5th share. The first defendant/C.E. Sulochana has filed this Application to reject the Plaint. For convenience, the Parties are referred to in their original rank in the Suit.

3. The plaintiff and defendants 2 to 4 are the sons and daughters of C.E. Reddi and the first defendant-C.E. Sulochana. The Suit property comprises of two items of valuable properties in Lake Area, Nungambakkam. Item (1) relates to 3 Grounds and 244 sq.ft. together with the building built upon Ground and First Floor bearing New No. 7. Second item comprises of two Grounds together with the Building thereon. Item (1) was purchased from Madras Property Investment Corporation Limited by C.E. Reddi in the name of first defendant-C.E. Sulochana by a Sale Deed dated 6.8.1956. The Item (2) was also purchased in the name of the first defendant-C.E. Sulochana.

4. The case of the respondent/plaintiff as projected in the Plaint is as follows:

(i) Suit Properties Items (1) and (2) were purchased In the name of the first defendant by C.E. Reddi from out of the joint family funds. C.E. Reddi, who is the father of the plaintiff, is the absolute owner of the Schedule Suit properties. After the death of C.E. Reddi, Item (2) Schedule property was allotted to defendants 3 and 4 by the first defendant without the knowledge and consent of the plaintiff. A misunderstanding and family dispute arose in 1987 and an oral partition was effected between the plaintiff and defendants 1 and 2. As per the oral partition the Western portion of Schedule Item (1) along with Garage was allotted to the plaintiff and Eastern portion was retained by defendants 1 and 2. Evidencing the same a wall was also built in between Western and Eastern side of the property from North to South. According to the plaintiff, while dividing the property, it was orally agreed that the Western portion to be allotted to the plaintiff as he being the eldest son and accordingly, he was allotted the Western portion.

(ii) It is the further case of the plaintiff that, even though oral partition was effected in the year 1987, the first defendant has filed the Suit in C.S. No. 719 of 2005 to direct the plaintiff to quit and deliver vacant possession of the Western portion of Suit property Item (1) and also for mesne profits. Since the first defendant had filed C.S. No. 719 of 2005, the plaintiff has no other way except to file the Suit for partition. According to the plaintiff, he is entitled to l/5th share of the Suit properties in both Items (1) and (2) including the properties given to defendants 3 and 4 and therefore, the Suit for partition and separate possession.

(iii) The first defendant has filed the Application under Order 7Rule 11 C.P.C. read with Order 14Rule 8 of O.S. Rules to reject the Plaint. Seeking rejection ” of the Plaint, the first defendant has filed the Application contending that Plaint Items (1) and (2) have nothing to do with the joint family properties or estate of C.E. Reddi and that the Suit has been filed only as a counter blast to C.S. No. 719 of 2005. In the earlier Suit in O.S. No. 8620 of 1996, the plaintiff himself has put forth the case of oral partition and in the said Suit a specific issue was framed, whether the present Suit property Item (1) is a joint family property. After full fledged trial, the Trial Court held that the property is not a joint family property, but self-acquired property of the first defendant and the Suit filed by the first defendant was decreed. The respondent/plaintiff has filed an Appeal in A.S. No. 324 of 2000 and the said Appeal