Point of Law: Respondents 1 to 4 are not at all entitled for partition and they are not also in joint and constructive possession of suit property. Court fee paid on the plaint is not correct and respondents 1 to 4 are not entitled to invoke provision of Section 37 of Court Fee Act to pay fixed court fee.

Judgment :-

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 20.12.2017 made in I.A.No.273 of 2017 in O.S.No.574 of 2011 on the file of the I Additional District Judge, Coimbatore.)

1. The Civil Revision Petition is filed against the order dated 20.12.2017 made in I.A.No.273 of 2017 in O.S.No.574 of 2011 on the file of the I Additional District Judge, Coimbatore, thereby dismissing the petition filed by the petitioner for rejection of plaint.

2. The petitioner is the 7th defendant and the respondents 1 to 4 are the plaintiffs. The respondents 1 to 4 filed a suit for partition, declaration and permanent injunction in respect of the suit property. While pending the suit, the petitioner filed a petition for rejection of plaint and the same was dismissed. Aggrieved by the same, the present Civil Revision Petition.

3. Mr.AR.L.Sundaresan, learned Senior Counsel submitted that the suit itself is hit under Order 2 Rule 2 of the Civil Procedure Code. Since, already their father filed a suit in O.S.No2361 of 2006 for injunction and the same was dismissed for default. Pending suit, the father of the respondents 1 to 4 died and they have filed I.A.No.358 of 2010 to implead themselves as legal heirs of their father and the same was dismissed for default by the Judgment and Decree dated 21.06.2011. The suit itself is barred by limitation. Since, the properties were already partitioned by the registered Partition Deed of the year 1973. Therefore, the respondents 1 to 4 ought to have filed a suit within a period of three years to set aside the said Partition Deed of the year 1973. The suit is filed for partition and the respondents 1 to 4 are not in possession of the property. Since, the entire property was purchased by the petitioner in the Court Auction Sale in the execution proceedings and as such there is no constructive possession of the suit property by the respondents 1 to 4 herein. Therefore, the suit was not properly valued and liable to be rejected.

4. He further submitted that the 11th respondent herein also filed a suit in O.S.No.509 of 2016 for declaration of the very same property, in which the petitioner as well as the respondents 1 to 4 are the parties. They filed a suit on the strength of the Gift Deed dated 18.07.1927 and as such the present suit is liable to be rejected. In fact, the stand taken by the petitioner in the present suit would not effect the trial in O.S.No.509 of 2016. The respondents 1 to 4 have taken specific stand that the Trust property and as such it cannot be declared in favour of the 11th respondent herein in O.S.No.509 of 2016. When it is the Trust property, the respondents 1 to 4 are not entitled for any partition in the suit property. Therefore, the suit cannot be sustained and it is liable to be rejected.

5. Per contra, the learned counsel for the respondents 1 to 4 submitted that the points raised by the petitioner are question of fact and it can be decided based on the evidence during the trial. It cannot be decided in the rejection of plaint application. The principle of res-judicata under Order 2 Rule 2 of the Code Procedure Code would not arise. Since, the father of the respondents 1 to 4 filed a suit in the year 2006 that too for injunction in respect of the suit property. The entire issues raised by the petitioner are factual in nature and those issues can be decided only in the main suit. The issue of court fee also can be decided during the trial. Therefore, all the issues raised involves question of fact and law and on that score the plaint cannot be rejected.

6. He further submitted that already the petitioner filed a Civil Revision Petition before this Court in CRP.No.740 of 2017 to strike off the plaint and the same was dismissed for the reason that the suit is of the year 2011 and the Trial Court is directed to dispose of the suit within the stipulated time on merits. While being so, the petitioner without proceed with the tria