ORDER

This revision petition is filed under Article 227 of the Constitution of India against the order, dated 27.07.2022, dismissing the petition in I.A.No.1714 of 2019 in O.S.No.46 of 2016 on the file of the Court of the District Judge, Ananthapuramu, filed by the revision petitioner/2^nd defendant under Order VII Rule 11 of CPC to reject the plaint.

2. Heard Sri Seelam Krishna Reddy, the learned counsel for the petitioner. In spite of service of notice, there is no representation for the respondents No.1 to 5.

3. The respondents No.1 to 5 filed the suit for partition. The petitioner/2^nd defendant contended that she purchased the land from the father of the plaintiffs in the year 1994 and since then she has been in possession and enjoyment of the same. She further submitted that the plaintiffs pleaded that the suit schedule property was purchased by their grandfather, by name, Marineni Venkatappa, under various sale deeds, and therefore, the father of the plaintiffs succeeded the property as his separate property and the same is not ancestral property in his hands as held by the Supreme Court, and therefore, it is not liable for partition. The suit was resisted on the ground of bar of limitation. The petitioner further stated that she filed similar petition in I.A.No.1043 of 2018, but the same was dismissed for default.

4. The respondents/plaintiffs filed the counter resisting the petition, stating that there was no partition and every plaintiff has right in the ancestral property and the names of the family members were also mutated in the revenue records for the purpose of revenue accounts only.

5. After hearing both sides, the trial Court dismissed the petition observing that the real question in controversy is whether the plaintiffs and defendants have rights and shares in the plaint schedule property, and therefore, it is only after taking trial, the Court can come to the conclusion and at the threshold, the rights of the parties cannot be decided, more particularly at this stage without taking evidence. It further observed that if the plaintiffs have no right, ultimately the suit would be defeated, but not at the threshold.

6. Aggrieved by the order, this revision petition is filed.

7. The 1^st defendant did not contest the petition.

8. Vide memo, USR No.79181/2022, dated 01.10.2022, the return postal covers with refusal endorsement of the respondent were filed. However again one more memo, dated 17.04.2023, was filed that the notice sent to respondents No.1, 3 and 4 was returned un-served with an endorsement “no such address” and neither the postal covers nor the acknowledgment of the respondents No.2, 5 and 6 and their counsel were returned, and therefore, the postal covers and receipts were filed annexing the memo. Though the refusal of notices can be treated as sufficient service of notice, as a matter of caution, this Court permitted the petitioner to again serve the notice through memo on the counsel for the respondents No.1 to 5 who is appearing before the trial Court. Proof of service of notice on the counsel appearing for the respondents, namely, Allu Narayanappa, was filed, vide memo, dated 24.04.2024. Since there has been no representation for the respondents No.1 to 5, this Court proceeded to hear the petitioner.

9. As the application is filed under Order VII Rule 11 CPC, irrespective of the defence raised in the written statement, the contents of the plaint shall alone be considered to examine whether the suit is maintainable with the pleadings in the plaint.

10. Even as per the averments in the plaint, the property was purchased by the grandfather, Marineni Venkatappa, and it is not the pleading that the property was purchased out of any nucleus from the joint family property. As such, on the death of Marineni Venkatappa, the property was succeeded by his only son, Marineni Pullanna, as his separate property and would not constitute ancestral property in his hand along with his children, and therefore, he is competen