IMPORTANT POINT
Appeal is maintainable, as an order refusing to reject the Plaint, is in category of preliminary Judgment.

T.S. Sivagnanam, J.—This Appeal is directed against the fair and decreetal order dated 10.04.2012 in Application No.3115 of 2011 in C.S.No.1009 of 2005. The appellants are the 7th and 9th defendants in the Civil Suit in C.S.No.1009 of 2005, filed by the respondents 1 to 6 /plaintiffs. The plaintiffs 1 & 2 are the sons of the second defendant, plaintiffs 3 to 5 are the sons of the third defendant and the 6th plaintiff is the son of the fourth defendant.

2. The plaintiffs filed the Suit during 2005 as indigent persons for a decree of partition against defendants 1 to 4; to handover vacant possession of the shares belonging to the plaintiffs either with specific boundaries or as undivided shares to the extent of which each of the plaintiffs are entitled; to declare the sale deed dated 03.01.1979, registered as Document No.16/79 executed by the defendants 1 to 4 in favour of defendants 5 & 6 as null and void and set aside the same as not valid and binding on the plaintiffs; consequently to declare the sale deed dated 26.11.1982 registered as Document No.917 of 1982, executed by the defendants 5 & 6 in favour of defendants 7 & 8 as null and void and not binding on the plaintiffs and to declare the release deed registered as Document No.770/79, executed by the defendants 2 to 4 in favour of the first defendant as null and void and not valid and binding on the plaintiffs.

3. The second appellant/9th defendant was brought on record as legal representative of her mother Smt.Saraswathi Ramachandran, the 8th defendant. The first appellant on his behalf and on behalf of the 8th defendant (since deceased), filed a written statement resisting the Suit claim. Thereafter, the appellants filed an Application for dismissal of the suit in A.No.3115 of 2011 under Order 15 Rule 1 C.P.C. read with Order 14 Rule 8 of the O.S.Rules. The plaintiffs filed their counter affidavit and the learned single Judge by the impugned order dismissed the Application primarily on the ground that the as the issues are triable issues, they have to be decided on evidence.

4. Before we commenced hearing of this appeal, an issue arose as to whether the Appeal is maintainable as against an order refusing to reject the Plaint, in the light of the decision of the Hon’ble Supreme Court in the case of Shah Babulal Khimji v. Jayaben D.Kania., (1981) 4 SCC 8. This decision which was considered by the Hon’ble Supreme Court in a later Judgment in the case of Liverpoor & London S.P. & I. Association Ltd., v. M.V.Sea Success I And Another, (2004) 9 SCC 512: [2004] 1 Supreme 365. wherein it was held that the appeal is maintainable as an order refusing to reject the Plaint is in the category of a preliminary Judgment. In the light of the said decision, there is no controversy as regards the maintainability of this Appeal.

5. Heard Mr.R.Gandhi, learned Senior counsel assisted by Mr.M.Kamalanathan, learned counsel appearing for the appellants and Mr.P.B. Sampathkumar, learned counsel appearing for the respondents/plaintiffs.

6. In this Judgment, for the sake of convenience, parties are referred to as described in the Civil Suit.

7. The case of the plaintiffs is that their grand father Mr.Ayyasamy, father of the defendants 1 to 4 was the absolute owner of the property bearing No.1, Dr.Radha Krishnan Salai, Kailasapuram, Chennai-4, having purchased the same by sale deed dated 16.07.1949 duly registered as Document No.750 of 1949. It is stated that Ayyasamy died intestate on 09.04.1955 and thereafter, the defendants 1 to 4 along with the plaintiffs were residing in the same place. It is further stated that the first defendant and his family moved out of the said premises to have their own establishment. The Plaint does not however state during which period the first defendant moved out of the said premises. The plaintiffs claim that they never gave up their right of ownership of the land and were under the impression that the first defendant was in occupation and possession of the prop