(Judgment of the Court was delivered by M.CHOCKALINGAM,J) The judgment shall govern the two appeals Viz., OSA.Nos.259 and 280 of 2005.
2. The Court heard the appellant in both the appeals.
3. Appeal No.259 of 2005 is filed at the instance of the plaintiff, pursuant to the dismissal of an application for injunction to restrain the 5th defendant from making any construction in the suit property, while the other appeal in OSA.No.280 of 2005 is filed at the instance of the 5th defendant against the order of dismissal of application for rejection of the plaint.
4. Both these appeals have arisen under the following circumstances:
(a) The plaintiff who is the appellant in OSA.NO.259 of 2005 filed C.S.NO.503 of 2005 alleging that the first defendant is the mother, second and third defendants are the sisters and the fourth defendant is the brother of the plaintiff. The fifth defendant is the third party. The property belonged to Hindu Coparcenery and there was a partition in the year 1977 in which the half of the property came to the hands of her father who died in the year 2005. He made an alienation of the property in the year 1993 by way of registered sale deed in favour of the 5th defendant by operation of law under Section 29A of the Hindu Succession Act which came into force in the year 1989. She became a coparcener, since was not married. Under such circumstances, the alienation was not in accordance with law. She has to be treated as a coparcener and the sale deed entered into by her father is only non-est in law. Therefore, the plaintiff is entitled to get half share in the property.
(b) The 5th defendant contested the suit. Pending suit, while application No.595 of 2005 was filed by the plaintiff to restrain the 5th defendant from making alienation in the property and Application No.596 of 2005 was filed to restrain him from making any construction over the property. While the matter stood thus, the 5th defendant/purchaser filed an application No.2578 of 2005 for rejection of plaint. All the applications were taken up by the learned Single Judge who has passed a common order whereby the Application No. 595 of 2005 was disposed of in view of the undertaking given by the 5th defendant not to make alienation and insofar as Application No.596 of 2005 is concerned, the learned Judge has dismissed the same. Equally, Application No.2578 of 2005 was also dismissed observing that the question of rejection of plaint can be decided leisurely at the time of trial. Under such circumstances, these appeals have arisen before this Court.
5. Learned counsel for the appellant/plaintiff in OSA.No.259 of 2005 would contend that it is a case where the plaintiff should have been found to be a coparcener, since she was not married and even 28A of the Hindu Succession Act came into operation in the year 1989 and the sale transaction has taken place only in the year 1993. As per Section 29A of the Hindu Succession Act, if the partition has taken place in the year 1977, it will not stand in her way and she is entitled to a share and since she was a coparcener, learned Single Judge has recorded a finding that she was not a coparcenar. The issues were not framed and parties were not given opportunity to put forth their contentions and hence the finding would operate against them in the suit. Learned counsel would further add that in the instant case, while the 5th defandant came forward to give an undertaking that he will not make an alienation on the property pending trial, the learned Single Judge should have ordered interim direction restraining the respondents from making construction over the property. Under such circumstances, it is a fit case where the appeal has got to be ordered in favour of the appellant/plaintiff.
6. On the contrary, learned counsel for the 5th respondent who is the appellant in OSA.No.280 of 2005 would submit that after filing of the suit, 5th defendant entered appearance. He filed application in App.No.2578 of 2005 seeking rejection of plaint. Learned Single Judge has not adverted to any of the contentions raised on the application for rejection of plaint. On the contrary, the learned Judge has observed that rejection of plaint can be considered leisurely at the time of trial, and dismissed the application. Learned counsel would further add that it is a case where sufficient grounds were available for rejection of the plaint. Hence, the Court should have considered the same and made an order of rejection. But, it has failed to do so.
7. Learned counsel would further add that insofar as the grievance ventilated by the plaintiff in O.A.No.596 of 2005 is concerned, the 5th defendant was able to place all the necessary documents that he was in possession of the documents from the year 1993. Under such circumstances, considering all the documentary evidence, the Court dismissed the application. Added further, merely because the undertaking was given not to alienate the property, pending suit, another application for injunction restraining the 5th defendant from making construction cannot be made. Under such circumstances, the appeal has got to be dismissed.
8. The Court paid its anxious consideration on the submissions made and looked into the materials available, particularly the order under challenge.
9. It was the suit for partition filed by the plaintiff in Application No.259 of 2005 called herself as a Coparcenar in the family and according to her, the Coparcenary originally constituted of her brother, the second defendant and her father, since deceased, by operation of Section 29A of the Hindu Succession Act. From the year 1989, she also became a coparcenar, since she has not married. Since the plaintiff came forward with a plea of partition, as member of the coparcenary, she is entitled to her half share in the property. Even before framing the issue and letting any evidence, the Court has taken into consideration the injunction application to decide that issue, which in the opinion of the Court was not warranted at this stage and this finding of the learned Judge in that regard has got to be set aside.
10. The next question is that two injunction applications are filed by the plaintiff. One to restrain the 5th defendant from making alienation of the suit property which was given a disposal on the undertaking given by the 5th defendant that he will not alienate the property. The second injunction application is to restrain the 5th defendant from making any further construction, which was stoutly opposed by the 5th defendant. The learned Single Judge has considered the documentary evidence of the year 1993 and also contended that the plaintiff was not in possession of the property at that time and the 5th defendant was in possession, and pointing to this, learned Single Judge came to the conclusion that it is not a fit case where interim injunction can be granted in favor of the plaintiff and to restrain the 5th defendant from making any further construction. In the instant case, the plaintiff therefore has not made a prima facie case to show that she was in possession during the relevant point of time. On the contrary, 5th defendant was in possession. Under such circumstances, the learned Single Judge has taken a view that there was no need to restrain the 5th defendant from making any construction and hence, dismissed the application, which in the opinion of the Court is rightly too and hence the appeal in that regard has got to be dismissed. The other appeal in OSA.No.280 of 2005 is concerned, after filing of the appeal, the 5th defendant has made an application in 2578 of 2005 for rejection of the plaint. The Civil Procedure Code contemplates a provision for filing an application for rejection of the plaint, at the earliest, when the matters are taken by the court. Learned Single Judge while disposing of the application has observed that application for rejection of plaint can be considered leisurely at the time of trial which in the opinion of the Court is recalled and accordingly set aside. Once the party has filed an application for rejection of plaint, the Court has to look into the same and hear the submissions put forward and take a decision whether to reject it or not. But, it is not done so. Under such circumstances, the order made in Appn.No.2578 of 2005 is set aside. The matter is remitted to the learned Single Judge, who requires to hear the submissions of both sides and make an order on the merits of the matter.
11. Accordingly, OSA.NO. 259 of 2005 is dismissed. OSA.280 of 2005 is partly allowed remitting the matter to the learned Single Judge. With these observations, the appeals are disposed of.
VJY