This Civil Revision Petition is filed against the order dated 8.4.2009 in OS.No.55/2005 passed by the learned Additional District Judge (FTC- II) Tirunelveli, dismissing the preliminary issue raised by the petitioners/defendants, holding that the above said court has got jurisdiction to try the suit.
2. The respondent/plaintiff has filed the above said suit before the learned Additional District Judge (FTC-II) Tirunelveli for partition of his 1/4th share in the suit property. The suit was resisted by the petitioners that the properties purchased by their father by name Gurusamy Konar were bequeathed in favour of the defendants by a registered Will dated 25.1.1993. Further, they have raised an issue inter alia that Gurusamy had purchased some other properties along with the suit schedule properties in the name of the plaintiff, but the plaintiff has wilfully suppressed the same and has not included in the partition suit.
3. The main contention put forth by the learned counsel for the petitioners is that the item (1) of the suit schedule properties alone is situated in the Tirunelveli District, whereas the other properties value of which is more than one crores of rupees mentioned in the suit schedule properties are lying in the Tuticorin District. Since the respondent is residing at Tirunelveli, he has purposely included the item (1) of the suit schedule properties standing in the name of the plaintiff, the market value of which is very meagre in order to bring the suit under the jurisdiction of the Tirunelveli Court.
4. The petitioners have already moved this court in Tr.CMP.No.165/2007 under Section 24 of CPC to withdraw the suit in OS.NO.55/2005 from the file of the learned Additional District Judge (FTC II), Tirunelveli and transfer the same to the District Court at Tuticorin and this court directed the trial court to decide the point of jurisdiction as a preliminary issue. Again Tr.CMP.No.80/2008 was moved by the petitioners before this court and this court directed the trial court to comply with the earlier order made in Tr.CMP.No.165/2007 dated 14.12.2007 and decide the issue regarding territorial jurisdiction as a preliminary issue within a period of four weeks from the date of receipt of a copy of the order.
5. Pursuant to the order passed by this court, the trial court took up the issue regarding territorial jurisdiction as a preliminary issue and after hearing the arguments of either side held that since a portion of the suit property i.e. item (1) was situated within the jurisdiction of the Tirunelveli Court, the trial court has got jurisdiction to try the suit.
6. Section 17 of CPC provides that where a suit is to obtain a relief in respect of the suit property in the jurisdiction of different court, the suit can be brought in any one of the courts and such court can deal with the whole of the property though some portion of it is situated outside the jurisdiction.
7. It has been held by the Honourable Supreme Court in the case of Madhao Deshpande Vs. Madhav Dharmadhikari [Air-1988-SC-1347], that where the dispute regarding the properties located within the jurisdiction of two courts was referred to arbitration and one of the properties was located within the jurisdiction of one of the courts, that court will have jurisdiction to entertain the award. It held that returning of the award by that court for presentation to the court within whose jurisdiction the other properties forming subject matter of the dispute were located was not proper.
8. The Division Bench of this court in the case of TSS.Natarajhun Vs. TSS.Neelakanthan and another [2009-1-MLJ-117] has held that for filing a suit for partition if any fraction of the immovable property is situate within the jurisdiction of the court, it is sufficient to try the case in the court where the suit is instituted.
9. Admittedly, the suit filed by the plaintiff is for partition. The claim of the plaintiff is that the suit schedule properties belonged to his father and he is entitled to 1/4th share along with his other brothers. The properties except item (1) of the suit schedule properties are situated at Tuticorin and the suit has been laid by the respondent in the court at Tirunelveli where item (1) suit schedule of property is situate.
10. In view of the settled position of law and in view of the provisions of Section 17 of CPC, I have no hesitation to hold that the suit filed by the respondent before the Additional District Court Cum FTC II, Tirunelveli is valid and thus, the trial court has rightly decided the preliminary issue, which do not suffer from any illegality or infirmity, warranting interference by this court. Therefore, there are no merits in this Civil Revision Petition and the same is liable to dismissed.
11. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MPs are closed.
Srcm To:
The Additional District Judge Cum FTC II, Tirunelveli