CRP(MD)/406/2024 of Tamilselvi Vs Subbammal on 23 September 2026

O R D E R

This Civil Revision Petition is filed against the fair and decreetal order dated 05/09/2023 passed in I.A.No.335 of 2022 in O.S.No.174 of 2021 by the learned IV Additional District Munsif, Madurai.

2. The learned counsel appearing for the petitioner states that the petitioner is the first defendant in the suit. The respondent/plaintiff filed the suit for partition and permanent injunction. The petitioner filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, seeking rejection of the plaint on the ground that there had already been a partition between the parties in the year 1979 and that pursuant to the said partition, the name of the petitioner had also been mutated in the revenue records. Therefore, according to the petitioner, the respondent has no subsisting right to seek partition once again.

3. The learned counsel for the petitioner further contended that the suit is barred by limitation and that there is no cause of action for maintaining the suit. According to the petitioner, the alleged right to sue arose in the year 1979 itself and the respondent had not approached the

Court within the prescribed period of limitation. It was also contended that several properties had not been included in the suit schedule. On the above grounds, the petitioner sought rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure.

4. The learned counsel appearing for the petitioner also submitted that the suit properties originally belonged to Subbaiah and his wife, Karuppayee. They died leaving behind two legal heirs, namely, Vellammal and Marudhu. Vellammal also died leaving behind two legal heirs, namely, Rajavelu and Subbammal, the present plaintiff. After the death of Rajavelu, his wife was impleaded as his legal representative. It is contended that the properties had already been partitioned and therefore, the subsequent suit for partition is not maintainable. It is further contended that several properties have not been included in the suit and that the suit is also barred by limitation. Hence, the petitioner filed the application under Order VII Rule 11 of the Code of Civil Procedure. However, the learned Trial Court, without considering the above aspects, dismissed the said application. Therefore, the learned counsel submitted that the Civil Revision Petition may be allowed by setting aside the impugned order passed by the Trial Court.

5. The learned counsel appearing for the respondent/plaintiff opposed the said application and submitted that an application under Order VII Rule 11 CPC has to be considered primarily on the averments contained in the plaint. In the present case, the petitioner did not file the application immediately after receipt of the plaint. The suit had already progressed substantially; the written statement had been filed, issues had been framed, P.W.1 had been examined and the matter had been posted for further marking of documents. Only at that stage, the petitioner filed the application under Order VII Rule 11 CPC.

6. It was further submitted that though certain properties stood in the name of Rajavelu in the revenue records, the same was due to the alleged collusion between Rajavelu and the revenue officials, taking advantage of the plaintiff's lack of knowledge. According to the respondent, only after coming to know of the mutation in the revenue records, she approached Rajavelu and requested him to effect partition of the properties. Since he refused to effect partition, she was constrained to file the suit. Therefore, it was submitted that the suit is not barred by limitation.

7. It was also submitted that the alleged oral partition of the year 1979 is specifically disputed by the respondent. The petitioner has not produced any document to establish that such partition had actually taken place. The mutation of the revenue records, by itself, cannot establish a partition between the parties. It was further contended that the plea regarding non-inclusion of certain properties is a matter to be established during the course of the trial and cannot, by itself, constitute a ground for rejection of the plaint under Order VII Rule 11 CPC.

8. The learned counsel appearing for the respondent further submitted that the petitioner had contended that since the father of the respondent was a Tahsildar, he had taken advantage of his official position and influence and caused the revenue records to be mutated. However, such disputed questions of fact cannot be adjudicated in an application filed under Order VII Rule 11 CPC. The learned counsel, therefore, submitted that the Trial Court had rightly dismissed the said application and prayed for dismissal of the Civil Revision Petition.

9. Heard the learned counsel appearing on either side and perused the materials available on record.

10. It is well settled that, while considering an application under Order VII Rule 11 CPC, the Court has to examine only the averments contained in the plaint and the documents relied upon by the plaintiff. The defence raised by the defendant cannot be taken into consideration at that stage. The questions as to whether there was an earlier partition between the parties, whether the mutation of the revenue records was validly effected, whether certain properties have been omitted from the suit schedule and whether the suit is barred by limitation are all matters which require adjudication on the basis of evidence, particularly when the factual assertions of the parties are disputed.

11. In the present case, the petitioner relies upon an alleged oral partition said to have taken place in the year 1979. However, the said partition is specifically disputed by the respondent. The mere mutation of the revenue records in the name of the petitioner, in the absence of other supporting materials, cannot be treated as conclusive proof of an earlier partition. The question as to whether such partition had actually taken place is a disputed question of fact, which can be decided only after trial.

12. Likewise, the contention that certain properties have not been included in the suit schedule also requires examination on the basis of the pleadings and evidence. The petitioner has not placed sufficient particulars before this Court to establish that the suit is liable to be rejected on that ground.

13. As regards limitation, the respondent has specifically pleaded that she came to know of the mutation only subsequently and that upon the refusal of the petitioner to effect partition, she approached the Court. Whether the suit is actually barred by limitation is also a matter which cannot be conclusively decided merely on the basis of the defence raised by the petitioner, particularly when the relevant facts are disputed.

14. The suit is one for partition between members of the same family and the trial has already commenced. The petitioner is at liberty to raise all his contentions and establish the same by adducing appropriate evidence during the course of the trial.

15. In view of the above, this Court finds no infirmity in the order passed by the learned Trial Court dismissing the application filed under

Order VII Rule 11 CPC. Accordingly, this Civil Revision Petition is dismissed. It is made clear that the observations made herein are only for the purpose of deciding the present Civil Revision Petition and the Trial Court shall decide the suit independently, uninfluenced by any of the observations made in this order. No costs. Consequently, connected Miscellaneous Petition is closed.

23.09.2026 Index : Yes / No Internet : Yes / No er To,

1. The Additional District Court, Madurai.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er

CRP(MD)No.406 of 2024 23/09/2026