J U D G M E N T

This First Appeal is preferred by plaintiff, challenging the order dated 26th June 2018 passed in Original Suit No.73 OF 2014 on the file of the Senior Civil Judge, Saudatti (for short, hereinafter referred to as ‘Trial Court’), allowing I.A.No.15 filed by the defendant Nos.3 and 4 under Order VII Rule 11(d) of CPC, rejecting the plaint as not maintainable.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. It is the case of plaintiff that, plaintiff is the daughter of Yallappa Shivappa Hallur and Kashavva Y. Hallur (defendant No.1). It is further stated that, defendant Nos.2 to 5 are the brothers of the plaintiff. It is averred in the plaint that, the suit schedule properties are the joint family properties of the plaintiff and defendants and as such, the plaintiff made a claim for her share in the joint family properties and same was denied by the defendants, accordingly, plaintiff has filed O.S.No.73/2014 on the file of the trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.

4. After service of notice, defendants entered appearance and filed detailed written statement. The defendant Nos.3 and 4 have taken a plea in the written statement that there is already partition was effected through the registered instrument on 23.07.2002 and accordingly sought for dismissal of the suit as not maintainable on the ground that, the plaintiff has no locus standi to seek partition in the schedule properties. The defendant Nos.3 and 4 have filed application in I.A.No.15 under Order VII Rule 11(d) of CPC, seeking rejection of plaint on the ground that, there is no cause of action to prefer the suit seeking partition and separate possession as the suit schedule properties have already been devolved among the joint family members as per registered partition deed dated 22.07.2002.

The said application was resisted by the plaintiff.

5. In order to establish their case, plaintiff herself was examined as PW-1 and produced 27 documents, which were marked as Exhibits P1 to P27. On the other hand, no oral and documentary evidence was adduced by the defendants.

6. The Trial Court after considering the material on record, allowed I.A.No.15 filed by the defendant Nos.3 and 4, consequently rejected the plaint by order dated 26.06.2018. Feeling aggrieved by the same, the plaintiff has preferred the present appeal.

7. We have heard Sri. Anand D. Bagewadi, learned counsel appearing for appellant; Sri. Santosh B. Rawoot, learned counsel appearing for respondent Nos.2 and 3.

8. Sri. Anand Bagewadi, learned counsel appearing for appellant contended that the appellant has filed an application seeking amendment of the plaint inter alia questioning the earlier partition deed dated 22.07.2002 and the said aspect was not considered by the trial Court as the said registered partition deed is not applicable to the plaintiff. He further contended that, mere registration of the partition deed ipso facto do not deprive the legitimate share of the plaintiff and therefore, learned counsel appearing for the appellant sought for interference of this Court.

9. Per contra, Sri. Santosh Rawoot, learned counsel appearing for respondent Nos.2 and 3 supported the impugned order passed by the Trial Court and sought for dismissal of the appeal.

10. Having heard the learned counsel appearing for the parties, we have given our anxious consideration to the grounds urged in the memorandum of appeal and perused the original records and thereby we thought it fit that the following points arise for consideration in this appeal;

1) Whether the finding recorded by the Trial Court based on registered partition deed dated 22.07.2002 is just and proper?

2) Whether the trial Court is justified in rejecting the plaint as the plaintiff has no cause of action in the suit ?

3) What order?

11. Having taken note of the submissions made by learned counsel appearing for the parties and in