O R D E R

This Civil Revision Petition has been filed by the petitioner/3rd defendant seeking to set aside the fair and decreetal order dated 15.03.2017 made in I.A.No.65 of 2015 in O.S. No.25 of 2013 on the file of the District Judge, District Court No.II, Kancheepuram.

2. The petitioner herein is the 3rd defendant and the respondent herein is the plaintiff in the original suit.

3. The case of the petitioner is that the respondent herein/plaintiff filed a suit in O.S.No.25 of 2013 before the District Court No.II, Kanchipuram, seeking for partition of the suit properties and for allotment of one share to her. During the pendency of the suit, the 3rd defendant has filed the application in I.A. No.65 of 2013 under Order 7 Rule 11 C.P.C to reject the plaint. The same was dismissed by order dated 15.03.2017 by the Court below. Being aggrieved by the aforesaid dismissal order, the 3rd defendant has filed the present Civil Revision Petition to set aside the same.

4. The learned counsel for the petitioner would submit that already there was a partition effected in the year 1999 itself in the name of brothers of plaintiff and the same also acknowledged by the plaintiff/ respondent herein by way of writing, the suit is barred under order 2 Rule 2 of CPC. After the partition by way of partition Deed in the year 1999, there is no question of joint Family and joint possession and enjoyment of property does not arise. Further, the plaintiff has not paid proper Court Fee and filed the suit having paid Court Fee under Section 37(2) of TNCF & SV Act. He further relied on the Judgment in the case of "Dr.L. Ramachandran; Dr. Gayatri Devi Vs. K.Ramesh; K.Suresh; M. Magesh,N.Sekar; N. Sukumar; G.Shivakumar" reported in 2015(5) CTC

629 (Mad) passed by this Court wherein it has been observed as follows:

11. The learned Single Judge accepted the fact that the age of the plaintiffs as given in the plaint if calculated would show that the youngest plaintiff namely the 6th plaintiff, attained the age of majority in the year 1992 and the time limit for questioning the transaction would expire by 1995 and the plaintiffs have launched the proceedings only in the year 2000 by stating that they verified the records of the Sub- Registrar and that the transactions have taken place without joining them as parties and filed the suit within three years from the date of knowledge. After accepting this factual position, the Court took note of the decisions of the Hon'ble Supreme Court in the cases of Ram Prakash Gupta Vs. Rajiv Kumar Gupta, 2008(1) MLJ 45 (SC); Kamala Vs. K.T. Eahwara Sa, 2008 (5) MLJ 617 (SC); and C. Natarajan Vs.Ashim Bai, 2008(1) MLJ 1278 (SC), and observed that the decision to be under Article 59 or any other provisions of limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under Article 59 or any other Article stated in the Schedule appended to the Limitation, without any evidence. Further, it was observed that since the decision to be reached on the applicability of the Limitation Act is harbouring on the evidence to be adduced by the parties on a separate issue to be framed therein, it cannot be decided in application under Order 7, Rule 1, C.P.C. for the purpose of rejecting the plaint. Further, it was pointed out that as regards acquiescence pleaded by the Defendants and other arguments for rejecting the plaint, the same would depend upon the evidence to be adduced during the trial, since they are only triable issues to be decided on evidence.

.....

21. It is to be noted that the transaction efffected was by the 1st defendant in whose favour the defendants 2 to 4 executed a Settlement Deed. Apart from that there has been two other transactions in respect of the smaller extents in the same property executed by the Defendants 2 to 4 which have not been questioned. The specific case of the defendants 7 & 8 is that they have purchased an extent of 4650 sq.ft of land from the 5th & 6th