The court concluded that the issues of property nature and limitation are mixed law and fact, necessitating trial rather than dismissal under Order VII Rule 11 of CPC.

ORDER :

R. SAKTHIVEL, J.

Feeling aggrieved by the Fair and Decretal Order dated August 12, 2022 passed by 'the learned Subordinate Judge, Omalur’ ['Trial Court' for convenience] in I.A. No.2 of 2022 filed under Order VII Rule 11 of ‘the Code of Civil Procedure, 1908’ (‘CPC’ for short) in O.S. No.48 of 2019, the Petitioner/sixth Defendant therein has preferred this Civil Revision Petition under Article 227 of the Constitution of India, 1950.

2. Heard Mr.Shangar Murali, learned Counsel appearing for the Revision Petitioner, Mr.B.Jawahar, learned Counsel appearing for the first Respondent and Mr.M.Nanda Kumar, learned Counsel appearing for the respondents 2 and 3.

3. Mr.Shangar Murali, learned Counsel appearing for the Revision Petitioner would submit that the first respondent is the daughter of respondents 2 and 3. The first respondent instituted a Suit in O.S. No.48 of 2019 seeking partition and also declaration that the decree dated August 14, 2008 passed in O.S. No.48 of 2008 on the file of the Sub Court, Mettur, is null and void. The first respondent further sought for a declaration that the Sale Deed dated April 23, 2009 is null and void and not binding on her. Further, the first respondent prayed for a declaration that the Sale Deed dated October 16, 2019, standing in the names of defendants 6 and 7, is void and not binding on her, along with consequential relief of permanent injunction.

3.1. He would further submit that in paragraph No.5 of the plaint in O.S. No.48 of 2019, the first respondent / plaintiff averred that the Suit Property was acquired by her under a registered Partition Deed dated August 17, 1988, annexed as Document No.1 in the list of documents filed along with the plaint. A conjoint reading of the averments of the plaint and plaint Document No.1 would clearly disclose that the Suit Property, along with some more extent of properties, were originally owned by one Kandhaiammal, who is the mother of the second respondent. The Suit Property was purchased by Kandhaiammal under registered Sale Deed dated January 24, 1963. After her demise, her sons namely Kandasamy, Kumaravel [second respondent] and Palanivel, along with the wife of her late son Perumal, entered into a registered Partition Deed. Under the said Partition Deed, the Suit Property was allotted to Kumaravel, the second respondent herein. Therefore, as per the plaint averments and plaint Document No.1, the Suit Property is not a joint family property. On the contrary, the same was inherited by the second respondent from his mother - Kandhaiammal under Section 15 of the Hindu Succession Act, 1956, and hence, the Suit Property in the hands of the second respondent was his absolute property and not joint family property as alleged by the plaintiff. Consequently, the plaintiff has no right or title over the Suit Property.

3.2. He would further submit that the second respondent, being the absolute owner of the Suit Property, is fully entitled to alienate, encumber or otherwise deal with the same and that the plaintiff has no right whatsoever over the Suit Property. He further would submit that the second respondent entered into a Sale Agreement with the fourth respondent on October 22, 2007. Subsequently, the fourth respondent instituted a Suit in O.S. No.48 of 2008 on the file of Sub Court, Mettur, seeking specific performance of the said agreement, which came to be decreed ex-parte. Pursuant to the said ex-parte decree, the fourth respondent obtained a Sale Deed through the process of Court. Thereafter, during the pendency of the Suit, the fourth respondent executed a Sale Deed in favour of the revision petitioner and the seventh respondent.

3.3. He would further submit that the first respondent had earlier instituted a Suit in O.S.No.222 of 2008 on the