Tapan Kumar Roy @APPELLANT@Hash Azad Ali & ors

Supplementary affidavit filed by the petitioner in Court today be kept on record.

This revisional application under Article 227 of the Constitution of India is at the instance of the defendant no. 1 in a suit for partition and is directed

against order dated August 25, 2017 passed by the learned Civil Judge (Senior Division) at Tamluk, Purba Medinipur in Title Suit No. 64 of 2017.

The defendant no. 1 in the suit filed an application questioning the maintainability of the suit on the ground that the suit property has already been

partitioned.

The learned trial Judge by the order impugned has rejected the said application.

The learned counsel for the petitioner submits that the original owner of the suit property Subodh Chandra Roy by four separate deeds of gift gifted his

landed properties to his four sons with specific demarcation. One of the sons of said Subodh Chandra Roy namely Samar Kumar Roy by virtue of one

of the such deeds of gift got a demarcated portion of the said landed properties of his father. The heirs of said Samar Kumar Roy sold the landed

property so allotted to their predecessor in interest to the opposite parties. It will appear from the said four deeds of gift that the suit property has

already been partitioned. He, therefore, submits that the suit for partition filed by the opposite parties is not maintainable.

The learned counsel for the opposite parties submits that the application for maintainability of the suit filed by the petitioner is in effect an application

under Order 7 Rule 11 of the Code of Civil Procedure. The averment in the plaint is only relevant in deciding an application of such nature. No

document can be looked into to decide such application.

Heard the learned counsel for the parties. Perused the materials on record.

The application filed by the petitioner questioning maintainability of the suit is in fact in the nature of an application under Order 7 Rule 11 of the Code.

It is settled position of law to decide such an application only the averment of the plaint can be looked into. On perusal of the plaint this Court does not

find any of the grounds contemplated under Order 7 Rule 11 of the code, is satisfied warranting rejection of plaint.

However, the petitioner has already filed written statement in the suit. On perusal of the written statement. It appears that the petitioner has taken the

point of maintainability in the suit on the ground that the suit property has already been partitioned by virtue of the deed of gift executed by said

Soubodh Chandra Roy in favour of his son Samar Kumar Roy, the predecessor in interest of the vendors of the opposite parties.

Therefore, an issue regarding maintainability of the suit on the said ground can be framed and may be decided by the learned Trial Judge in

accordance with law.

The Trial Judge is, therefore, requested to frame appropriate issues in the suit including an issue regarding maintainability of the suit and to dispose of

the said issue in accordance with law.

With the above observations, the revisional application being CO 3431 of 2017 is disposed of. No order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.