ORDER:

This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful petitioner/defendant No.1 is directed against the order and decree, dated 28.01.2021, of learned Principal Senior Civil Judge, Madanapalle, Chittoor District, passed in I.A.No.255 of 2020 in OS No.612 of 2014 filed under Order XIV Rule 2(1) CPC.

2. Heard Sri V.V.S.Murali Krishna, learned counsel for the revision petitioner. In spite of service of notice, there is no representation for the 1st respondent/plaintiff. Respondents 2 to 9 are shown to be not necessary parties to this revision petition.

3. The facts necessary and relevant for consideration, in brief, are as follows:

The plaintiff brought the suit on 23.12.2014 against the defendants seeking the relief of partition. The 1st defendant filed written statement on 25.06.2015. On 04.02.2020, the 1st defendant filed I.A.No.112 of 2020 for settlement of seven additional issues and the same was allowed on 26.02.2020. As per the additional issues settled, issue Nos. 2 & 5 are to be decided first before going into the merits of the matter. The plaintiff has no right to continue the suit for mere partition. Hence, the 1st defendant filed the present application praying the court to decide the additional issue Nos.2 & 3 as preliminary issues before taking up other issues for trial.

4. The 1st respondent/plaintiff filed counter denying the plea taken by the petitioner/1st defendant and contending that the proposed issues ought to have been decided at the final hearing of the suit after adducing the evidence of both sides. The alleged gift deed and partition deed filed by the petitioner/1st defendant is in between their family members but not the other co-owners as the suit schedule property is the ancestral property of Gajuna Changanna. The said documents are created and brought into existence after filing of the present suit. On the point of Court fee, the trial court has come to the conclusion that only after adducing the evidence on both sides, the said issue will be decided. The petitioner filed the present petition to only to drag on the proceedings. Hence, the petition is liable to be dismissed.

5. The trial Court, by the order impugned dismissed the petition holding as under:

“So as per Order 14 Rule 2(2) of CPC, every issue of law need not be tried as preliminary issue unless it relates to jurisdiction of the Court or a bar to the suit created under any law. The above issues in question cannot be determined without recording evidence. So, those issues shall not be determined as preliminary issues.

Accordingly, the point is answered.”

6. Aggrieved thereby, the revision petitioner/1st defendant, preferred this revision.

7. In the grounds of revision, the petitioner raised the following grounds:-

The order of the trial Court is prima facie illegal, erroneous and contrary to law and it grossly erred in dismissing the interlocutory application, as the suit is filed for mere partition of the plaint schedule property into three shares and allotment of one such share to him without seeking the relief of declaration and recovery of possession; and also deciding the issue as to whether the court fee paid under Section 34(2) of A.P.C.F. & S.V. Act by the plaintiff is correct or not, since the court fee paid by the plaintiff is insufficient. 8. The issues framed by the trial Court on 13.12.2019 read as under:

1. Whether the plaintiff is entitled for division and partition of the plaint schedule properties into three equal shares as prayed for or not?

2. Whether the plaintiff is entitled for 1/3rd share in the plaint schedule property as prayed for or not?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for non joinder of necessary parties? 5. To what relief?

(b) On 26.02.2020, the following additional issues were framed by the trial Court:

6. Whether the plaint schedule is correct under Order 7 rule 3 of CPC?

7. Whether the suit for mere partition is maintainable, without s