1. The revision petition has been filed under 227 of the Constitution of India, challenging the order passed by the trial Court, wherein the prayer of the revision petitioner to reject the plaint has been dismissed.

2.(A)Facts leading to the filing of this present revision petition are as follows:-

The respondents 1 to 9 herein as plaintiffs have filed O.S.No.20 of 2007 on the file of the Additional District Court, Dindigul, for the relief of partition and for separate possession. In the plaint averments, it is contended that the plaintiffs are the descendants of one Veerabathran Pillai, who had left behind 7 sons namely Pandia Pillai, Shanmugavel Pillai, Sivagurunatha Pillai, Athinarayana Pillai, Arumugam Pillai, Ponnusamy Pillai and Kasi Viswanathan.

3. The plaintiffs had further contended that the eldest son of Pandia Pillai had earlier filed O.S.No.57 of 1931, before the Additional District Munsif Court, Dindigul, for partition and separate possession and for rendition of accounts. The said suit was dismissed as abated after the death of Pandia Pillai. It is further contended by the plaintiffs that the second son of Pandia Pillai namely Veerabathran Pillai had filed a suit in O.S.No.35 of 1959, before District Munsif Court, Dindigul for the relief of partition and separate possession. A preliminary decree came to be passed on 24.08.1960, based upon a memorandum of compromise. In the said memorandum of compromise, D3, D4, D5, D6, D7 and D9 have not put their signatures. The 6th defendant in the suit namely Sattam Pillai had passed away on 16.05.1960, However, three months thereafter, the compromise decree was passed on 24.08.1960.

4. It is the further contention of the plaintiffs that since the 6th defendant namely Sattam Pillai had died prior to the memorandum of compromise and prior to the preliminary decree, it is a fraud upon the Court. It is further contended that in the memorandum of compromise which is specifically pleaded that 6th defendant and 7th defendant in the said suit have not concurred for the said compromise. Therefore, the judgment and decree, dated 24.08.1960, is a nullity and not binding upon the plaintiffs. It is further contended that the plaintiffs were not aware of these developments.

5. It is further contended that the suit properties are ancestral in character and since there was no division till date, they are deemed to be in joint possession as co-owners. The first defendant without the knowledge of the plaintiffs had entered into some fraudulent and collusive transactions with the 7th defendant and therefore, the plaintiffs had issued legal notice. Since the defendants have not come forwarded for an amicable partition, the present suit has been filed.

6. The 7th defendant/the revision petitioner herein has filed a written statement contending that the present suit is barred by res judicata and the plaintiffs are precluded from claiming any right in the suit schedule property, in view of the preliminary decree passed in the previous suit. He would further contend that pursuant to the said compromise decree, one of the defendants namely Kasi Viswanathan and his Veerabathran Pillai alone are in possession and enjoyment of the entire extent of the suit schedule property, except the portion which they have sold to Veerabathran Pillai's second wife's son.

7. The seventh defendant in the suit had filed I.A.No.48 of 2015 seeking to reject the plaint on the ground that in the family partition on 27.12.1925, his father Kasi Viswanathan was allotted T.S.No.411/2 measuring 2.40 acres. In the partition suit in O.S.No.35 of 1959, this property was specifically left out. However, this was not objected to by the father of the present plaintiff's namely Sattam Pillai. Later a final decree came to be passed in I.A.No.1232 of 1960, dated 12.07.1961. The father of the plaintiff's had not chosen to challenge the final decree also.

8. It is further contended in the Order VII Rule 11 of C.P.C. petition that the father of the plaintiffs had appeared in the Court and endorsed that they are submitting the decree and therefore, the present suit for partition by the legal heirs of the said sattam Pillai is clearly barred by res judicata and estoppel.

9. It is further contended that he had purchased the said property from the legal heirs of the Kasi Viswanathan and therefore, the plaintiff's present suit is liable to be rejected.

10. The plaintiff had filed a counter disputing the fact that an extent of 2.40 acres in T.S.No.411/2 was allotted to the share of the Kasi Viswanathan on 27.12.1925. When the allotment of the properties in favour of the Kasi Viswanathan by way of alleged lot on 27.12.1925 is disputed, the said issue cannot be decided in the Order VII Rule 11 of C.P.C.

11. The trial Court had dismissed the petition on the ground that the suit schedule property in the present suit was not the subject matter of O.S.No.35 of therefore, the issue of res judicata would not arise. The reason non of the property in the said suit for partition would have to be ascertained only during trial. The trial Court has further held that the rejection of the plaint application has to be considered only on the basis of the averments in the plaint and the documents annexed to the plaint, and the written statement filed by the defendant cannot be taken into consideration. This order is under challenge in the present revision petition.

(B) Contentions of the learned Senior Counsels appearing on either side:

12. The learned Senior Counsel appearing for the revision petitioner has contended that the plaintiffs in the present suit are descendants of the 6th defendant namely Sattam Pillai in O.S.No.35 of 1959. The plaintiff's father namely Sattam Pillai had made an endorsement to the effect that he is subjecting himself to the decree. The present suit for partition is clearly barred by limitation and there is no cause of action for filing the present suit.

13. The learned Counsel had further contended that Sattam Pillai was a party to the final decree proceedings also. The present suit schedule properties have been allotted to the shares of D1 to D6 who are the predecessors are in title of the plaint of the revision petitioner. He further contended that all the properties have not been included in the present suit for partition and therefore, the suit is bad for partial partition. Though it is contended in the plaint that fraud had been played upon the plaintiffs, the date of the knowledge of the said fraud had not been specifically mentioned and therefore, the suit is barred under Article 59 of the Limitation Act. He further contended that when 1925 deed was not disputed by the present plaintiff's father, the question of reopening the said partition by way of the present suit is clearly illegal and hence he prayed for allowing the revision petition and reject the plaint.

14. Per contra, the learned Senior Counsel appearing for the respondents herein had contended that the suit is of the year 2007 and when the suit was posted for cross examination of P.W.1, the present application for rejection of the plaint has been filed belatedly. He further contended that the 7th defendant is the purchaser from D1 to D6 and therefore, he cannot be aware of the fact what were the properties allotted to the sharers in the alleged 1925 deed. He further contended that the endorsement made in the plaint in O.S.No.35 of 1959 is so vague in nature and the said endorsement cannot be relied upon for non-suiting the plaintiffs. He further contended that for considering an application under Order VII Rule 11, only the plaint averments as well as the documents annexed to the plaint have looked into and therefore, the other documents or the in the earlier suit cannot be looked into. Hence he prayed for of the revision petition and to sustain the order passed by the trial Court.

15. I have carefully considered the submission made on either side and perused the materials available on record.

16. The 7th defendant in the suit has filed the application to reject the plaint, primarily on the ground that the present plaintiff's father mamely Sattam Pillai was a party in O.S.No.35 of 1959 and suffered a decree and therefore, the present suit for partition by his legal heirs is not maintainable.

17. It is admitted on either side that the present suit schedule property is not the subject matter of O.S.No.35 of 1959. However, O.S.No.35 of 1959 is referred to, by the revision petitioner, only on the ground that the properties of Kasi Viswanathan are shown as boundary to the 4th item of 'A' schedule property in O.S.No.35 of 1959. Paragraph No.3 of the plaint in O.S.No.35 of 1959 is referred to the fact that in 1925, there was a family arrangement between Pandia Pillai and his 6 other branches. Therefore, it is clear that paragraph No.3 of the plaint is sought to be read along with the boundary recitals in the plaint schedule of the earlier suit, to come to the conclusion that this property was allotted in favour of the vendor of the 7th defendant herein.

18. It could be seen from the fair order of the trial Court that the plaint in O.S.No.35 of 1959 and the decree in O.S.No.35 of 1959 have been marked as Ex.P2 and Ex.P4. The final decree in O.S.No.35 of 1959 has been marked as Ex.P7. It is settled position of law that for rejecting a plaint, only the plaintiff averments as well as the documents annexed to the plaint can be looked into. Neither the written statement nor any documents, that is sought to be relied upon in the rejection of the plaint application can be looked into. That apart, this Court is of the prima facie view that the averments in the plaint in O.S.No. 35 of 1959, does not disclose, which properties were allotted to the vendor of the 7th defendant in the present suit. The alleged allotment in favour of Kasi Viswanathan or his sons in the year 1925 is subject matter of trial.

19. The issue of res judicata is the mixed question of law and fact and the same can be decided only after the pleadings and the judgment and decree in previous suit are marked before the Court. A mixed question of law and fact cannot be considered for the purposes of rejecting the plaint without undergoing a trial.

20. When the present suit property was not the subject matter of O.S.No. 35 of 1959, merely based upon some boundary recitals and the plaint averments in the said O.S.No.35 of 1959, the plaint in the present suit for partition cannot be rejected. Therefore, there are no merits in the revision petition and the same is dismissed by confirming the order passed by the trial Court. However, the revision petitioner is at liberty to raise all the issues during trial and the trial Court is directed to decide the suit on merits and in accordance with law without being influenced by any of the observations made by this Court in the revision petition. The trial Court is directed to dispose of the suit on or before 31.12.2024.

21. Accordingly, this civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is also closed.