ORDER

1. The petitioners are before this Court seeking for the following reliefs:

“Call for the records in O.S.No.642/2023 on the file of Addl. Senior Civil Judge, Nelamangala and set aside the order dated 22.04.2024 passed on I.A.No.2 filed by the petitioners under order VII Rule 11(a) and (d) of CPC in O.S.No.642/2023 and consequently allow the IA No. 2 filed by the petitioners before the trial court, in the interest of justice.”

2. Respondents No.1 and 2 had filed a suit in O.S.No.242/2023 seeking for the following reliefs:

a. Effecting partition accordance with an un registered Panchayathi parikathu dated 14.4.1985 and separate possession of plaintiff’s legitimate share over the suit schedule property.

b. Grant injection against the defendants not to alienate and create any third party right over the suit schedule properties in respect of the plaintiff’s shares.

c. Declare that the sale transaction made by the defendant No.1 in respect of the plaintiff’s share is not binding on the respective legitimate share of the plaintiff’s.

d. Award Mense profits.

e. Award cost and litigation expenses.

f. Pass such other order or direction that this Hon’ble Court deems fit to grant in the interest of justice and equity.

3. In the said suit, the petitioners who were defendants No.1 and 2 had filed an application under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure, 1908 seeking for the rejection of the plaint on the ground that it does not disclose any cause of action and is barred by law. Towards this end, what was contended is that the plaintiffs themselves in Para 10 admitted a partition among the family members on 14.04.1985 and as such, the plaintiffs having admitted the partition, the present suit could not be filed. It was further contended that the property was a self-acquired property of defendant No.1 and not joint family property, they are not residing together as joint family members and therefore a claim for partition is not maintainable.

4. The trial Court vide its order dated 22.04.2024 dismissed the said application on the ground that what is to be looked into is only the averments made in the plaint and not the allegations/averments made in the written statement. The aspect of whether property is self-acquired property or joint family property would have to be determined after trial. The aspect of whether the suit is bad for non-joinder of parties as also for partial partition would also have to be determined after trial. The contentions taken up in the written statement could not be looked into. It is challenging the said order, the petitioners are before this Court.

5. The learned counsel for the petitioners reiterates the statements made in the application under Order 7 Rule 11 of CPC and submits that once a partition had been admitted by the plaintiffs themselves in the year 1985, the suit filed in the year 2023 could not be maintained.

6. Having heard the learned counsel for the petitioners and having perused the plaint, it is clearly seen that the plaintiffs have admitted partition in the year 1985 and the prayer sought for is to divide the property in terms of that partition. Thus, in my considered opinion the plaintiffs are not seeking for another partition but are only seeking for giving effect to the partition effected in the year 1985.

There cannot be any fault found therein.

7. On enquiry, learned counsel for the petitioners if the petitioners – defendants admit the partition, he submits that the said partition deed is a fabricated document.

8. The plaintiffs having stated that there is a partition and the defendants contending that there is no partition, the document is fabricated, the question of rejection of the plaint on the ground of such partition would not arise unless and until the defendants were to accept the partition. There being a dispute as to whether there is a partition deed executed or not that would also be subject matter of trial. Be that as it may, as observed above, what the plaintiffs have