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 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.

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.

(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 averments made in the plaint alone and the averments made in the written statement is irrelevant. Similarly, the entire pleadings and averments made in the plaint in entirety, must be held to be correct and the test is to whether if the averments made in the plaint are taken to be correct in their