The civil court lacks jurisdiction in partition suits concerning secured assets under Section 34 of the SARFAESI Act.

JUDGMENT

This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the additional second plaintiff/appellant is against the judgment and decree dated 22/07/2019 in A.S.No.17/2015 on the file of the Subordinate Judge's Court, Cherthala, which appeal in turn is against the judgment and decree dated 29/11/2014 in O.S.No.275/2010 on the file of the Munsiff Court, Cherthala. The parties and the documents will be referred to as described in O.S.No.275/2010.

2. The plaint schedule property belonged to Dumminku Mathaikutty, who died in the year 1974. Annakkutty, his wife predeceased Mathaikutty. The plaintiff Mariyamma and her brother Kunjukunju are the only legal heirs of Mathaikutty. On the death of Mathaikutty the plaint schedule property no.1 devolved on the sole plaintiff and late Kunjukunju, who were in joint possession and enjoyment of the property. Defendants 4 to 9 are the legal heirs of Kunjukunju. Kunjukunju during his life time was looking after the plaint schedule properties and thereafter the properties was in the possession and enjoyment of the sole plaintiff. On 17/05/2010, a notice was seen affixed on plaint schedule item no.1 property stating that the third defendant had bid in the auction proceedings conducted pursuant to proceedings initiated by the Debt Recovery Tribunal (DRT), Ernakulam and that the second defendant bank is going to take possession of the property. On enquiry it was found that two settlement deeds had been executed by Kunjukunju in favour of his son, the 9^th defendant, in respect of the plaint schedule properties. The 9^th defendant had availed loans from both the first and the second defendant banks relating to plaint schedule item no.1 and item no.2. He failed in repaying the amounts pursuant to which both the banks initiated proceedings against the secured asset and obtained orders in their favour. Pursuant to the second defendant obtaining orders relating to plaint schedule item no.1, the property was auctioned to the third defendant and thereafter Ext.B9 sale certificate issued in his favour. Plaint schedule item no.1 was sold by the first defendant bank to one Prasanth Simpson. When the first plaintiff came to know about the DRT proceedings, she filed an objection before the DRT. According to the plaintiff the documents executed by her brother Kunjukunju are void and not binding on her and so she is entitled to ½ share in the property. The plaint schedule properties have so far not been mutated in the name of the 9^th defendant and the same continues in the thandapper of late Mathaikkutty. The plaintiff is still in possession and enjoyment of the plaint schedule properties. Hence the suit seeking partition of the plaint schedule property and allotment of ½ share to the plaintiff.

3. During the course of the proceedings the sole plaintiff died. The 6^th defendant claimed that the plaintiff had executed a will in his favour and hence on his request was transposed as the additional second plaintiff.

4. The first defendant filed written statement contending that the suit was not maintainable in the light of Section 34 of the Securitisation and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the SARFAESI Act'). In fact, the plaintiff had approached the DRT, Ernakulam and filed S.A.No.60/2009 raising similar allegations. The first defendant also disputed the allegation of the sole plaintiff that she is the sister of Kunjukunju. The plaint schedule property no.2 was mortgaged by the 9^th defendant with the first defendant bank when he availed a loan. However, the 9^th defendant faile