Dismissal of Civil Revision Petition affirmed; trial court's reliance on Ex.B5 patta upheld.

O R D E R

The appellants in A.S.No.15 of 2020 on the file of the Additional District Court, Theni, Periyakulam, have filed the present Civil Revision Petition challenging the dismissal of their application filed under Order 41 Rule 27 of C.P.C.

2. A perusal of the records reveal that the revision petitioners herein as plaintiffs have filed the above said suit for the relief of partition and separate possession. The plaintiffs and defendant are siblings. According to the plaintiffs, the suit schedule property belongs to their mother and after the death, the plaintiffs are entitled to ¾ share in the suit schedule property. The defendant had filed a written statement contending that the suit schedule property was allotted in his favour in oral partition. She has further contended that the other properties have not been included and therefore, the suit is bad for partial partition.

3. The trial Court after considering the submissions made on either side has arrived at a finding that the suit is bad for partial partition and the defendant is the owner of the property. The trial Court relying upon Ex.B5 patta, has arrived at a finding that the defendant is the owner of the property. Challenging the said decree, the plaintiffs have filed A.S.No.15 of 2020 before the Additional District Court, Theni. Pending appeal, the appellants have filed I.A.No.129 of 2021 under Order 41 Rule 27 of C.P.C., to summon the Tahsildar to establish before the Court that such a patta has been granted in favour of the defendant without issuing any notice to the other sharers. This application came to be dismissed by the trial Court on the ground that the application filed by the revision petitioners has not satisfied the ingredients of Order 41 Rule 27 of C.P.C. The trial Court further found that the plaintiffs having not examined the Tahsildar before the trial Court, cannot file such an application before the first appellate Court. Challenging the same, the present Civil Revision Petition has been filed.

4. According to the learned counsel appearing for the revision petitioners, Ex.B5 patta has been granted in favour of the defendant without issuing any notice to the other legal heirs and there is no pleadings in the written statement with regard to the patta. They came to know about Ex.B5 patta only when it was produced along with proof affidavit. Therefore, they did not have any opportunity to file an application to examine the Tahsildar before the trial Court on the above said aspects.

5. Per contra, the learned counsel appearing for the respondent/

defendant had contended that the suit was dismissed not only relying upon Ex.B5 patta, but the trial Court has further found that the suit is bad for partial partition. In such circumstances, the plaintiffs, having not satisfied the ingredients of Order 41 Rule 27 of C.P.C., the trial Court has rightly rejected the said application.

6. Heard both sides and perused the material records.

7. The primary grievance of the revision petitioners is that the trial Court has relied upon Ex.P.B5 patta standing in the name of the defendant to dismiss the suit for partition. It is further contended that the suit schedule property is absolutely owned by their mother. In case, if the plaintiffs contend that the suit schedule properties belong to their mother, it is for them to establish before the court. The patta standing in the name of the defendant will not stand in the way of plaintiffs to establish the said fact. Therefore, the examination of Tahsildar before the first appellate Court is not necessary. The first appellate Court has rightly dismissed the said application and there are no merits in this Civil revision Petition.

8. Accordingly, this Civil Revision Petition stands dismissed.

Considering the fact that the appeal is of the year 2020, the first appellate Court is directed to dispose of the appeal in A.S.No.15 of 2020 on or before 31.12.2025. There shall be no order as to costs. Consequently connected Miscellaneou