The revision petitioner is the 2nd defendant. The suit is filed for partition on the premise that the mother of the plaintiff died intestate and the plaintiff as well as the defendants 1 and 2 being her daughters are entitled for 1/3 share each. Whereas, the 2nd defendant has filed an application to reject the plaint under Order 7 Rule 11, claiming that there is no cause of action exists in the suit and the suit schedule property has been already settled in her favour by her mother Tmt.Maria Pushpam on 22.04.2009 itself.
2.The Trial Court taking note of the contention made by the parties has held that the cause of action for the suit has been clearly stated in the plaint and the matter pleaded in the plaint alone to be taken note of for the purpose of admitting the suit and not the rival contentions made by the defendants by way of written statement. If there is semblance of cause of action available, plaint cannot be rejected invoking Order 7 Rule 11 and parties should go the whole hog in conducting the trial and it is ultimately for the Court to render a decision based on the rival claims made by the respective parties. In support of the said observation, the learned Trial Court has referred to the judgment of the Hon'ble High Court reported in 2013 (1) TNLJ 469.
3.The 2nd defendant may have a good case in the partition suit, based on the settlement deed alleged to have been executed by Tmt.Maria Pushpam. But the genuineness of the execution of the settlement deed and whether it was acted upon are all matter of facts to be proved through the evidence in the trial. The Court cannot summarily accept the plea of settlement executed by Tmt.Maria Pushpam and de-suit the plaintiff who is otherwise entitled for the share in the property of Tmt.Maria Pushpam. Therefore, this Court finds no merit in this revision petition to reject the plaint outrightly, without subjecting the parties for a full and complete trial.
Hence, this Civil Revision Petition is dismissed. No costs. Consequently, C.M.P(MD)No.2122 of 2017 is closed.
To The I Additional Subordinate Court, Tiruchirappalli.
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