A.S.No.230 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 07.06.2023

PRONOUNCED ON : 23.06.2023

CORAM

THE HON'BLE MR. JUSTICE S.VAIDYANATHAN

AND

THE HON'BLE MR.JUSTICE K.RAJASEKAR

Appeal Suit No.230 of 2022

and

Civil Miscellaneous Petition No.22281 of 2022

A.John Basha

... Appellant /1^st respondent

Versus

1.S.Jayaraman

2.Gowhar John

3.Abdul Kalam Azath

4.Kulab John

5.Alen John

6.Rashia Begum

7.C.Kandasamy

Nallappan (deceased)

8.Sub Registrar,

Omalur, Salem District.

9.Rajathi

10.Manickam

... Respondents/Respondents

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A.S.No.230 of 2022

Prayer: The Appeal Suit filed under Section 96 read with Order XLI Rule 1

of the Code of Civil Procedure to set aside the Judgment and Decree of

rejection of plaint, dated 11.04.2017 passed in I.A.No.1115 of 2015 in

O.S.No.146 of 2010 on the file of the I Additional District Court, Salem.

For Appellant

: Mr.V.Venkatasamy

For R1

: Mr.T.S.Vijaya Raghavan

For R2 to R6

: Mr.T.Sundaravadanam

For R7 & R8

: No appearance

For R9

: Not ready in notice

JUDGMENT

[The Judgment of the Court was delivered by K.RAJASEKAR,J.,]

This Appeal has been filed by the first respondent, against the

fair and decreetal order passed in I.A.No.1115 of 2015 in O.S.No.146 of

2010, dated 11.04.2017, on the file of the I Additional District Judge, Salem,

wherein, the trial Court has rejected the suit filed by the plaintiff by invoking

under Order VII Rule 11 (a) of the Code of Civil Procedure.

2. Aggrieved over the same, the plaintiff has filed this present

appeal.

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A.S.No.230 of 2022

3. The case of the plaintiff is as follows:

(a) The first defendant is the wife, the plaintiff and the

defendants 2 to 5 are the children of one Ameer, son of John Basha. The suit

properties were consisting 12.20 acres of land situated in Survey No.35/4 at

Vallapatti Village, Salem was originally allotted to Ameer, by way of a

Partition Deed, dated 29.05.1995 and he was in possession and enjoyment

of the same. The plaintiff's father Ameer along with defendants 2 to 5 have

entered in to the agreement of sale with the sixth defendant and based on the

same, the sixth defendant has filed the suit against them.

(b) On 06.11.1974, while Ameer was alive, the plaintiff has

executed a Relinquishment Deed, relinquishing his share in the suit

properties in favour of his father. After the death of Ameer, on 03.07.2008,

the plaintiff inherited 1/4 share in the suit properties but the defendants have

not come forward to partition the suit properties. Hence, he issued legal

notice, dated 28.04.2010 to the defendants 1 and 2, but no reply was sent.

The defendants 1 to 5 also executed a registered Power of Attorney in favour

of the seventh defendant, since the defendants have refused to partition the

suit properties has come forward with this suit.

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A.S.No.230 of 2022

(c) The defendants after entered into the appearance in the suit,

the sixth defendant had filed I.A.No.1115 of 2015, seeking rejection of

plaint wherein, it is contended that by suppressing several facts including

various litigations, which reached its finality, the plaintiff has filed the suit

with bogus claim by making clever drafting of the plaint. The petitioner has

also narrated previous litigations held between the plaintiff, the plaintiffs

father and the defendants.

(d) After taking notice of the previous litigations held between

the parties including the decree for specific performance passed against the

plaintiff's father, the trial Court has held that there is no cause of action in

the suit and rejected the plaint.

4. We have heard the learned counsel on both sides in this

appeal and perused the materials placed before this Court.

5. The learned counsel for the appellant contended that for

exercising the power under Order VII Rule 11 (a) CPC, the trial Court has

look into the averm