partition suit priliminary issue
prasad
(Querist) 16 February 2011
This query is : Resolved
plaintiff had filed original suit in 1999 .My father (Def no 1) died 29.01.2003 .our advocate had intimated on very next date. In May 2005 court had passed order suit abated against defendants no 1 decedents as no Lr brought on record though sufficient time is granted. In suit 30 defendants also .We Lrs of Def no 1 in possession 60 % of suit property .Plaintiff tactically withdrawn original suit in dec 2005 subject to filing fresh suit saying as another few defendants also died so its easy to file fresh suit rather than continue original. In 2006 filed fresh suit on same cause of action.
Court has allowed to argu on our preliminary issue apllication.we put two issues .next date after 15 days.
1) Suit is not maintainable as Or.22 r. 9 on ground suit is abated against (we are LRs of defended no. 1.
a) I have to ask 1) what kind of defense plaintiff can take.
2) Pecuniary Jurisdiction is 1 Lakhs to JMFC
Most of suit property is agriculture land. Plaintiff have said only 17 guntha is Non Agri we are bringing on record 40 Gunthas are N.A.though he suits value doesn't go so far 2 lakes .plaintiff will pay differential amount & may continue suit.
Out of suit properties some already sold before filed of suit those are also made parties. Purchaser developed the properties
B) I have to ask --Can we seek the cost of construction is also subject to suit valuation.
constrution made by purchaser is more than 60 lakhas.
Ramakrishna Ponnekanti
(Expert) 17 February 2011
if court gave permission to withdraw with liberty to file fresh suit,all objections will not stand. propert even if sold already can be subject of suit for partition if sold without consent of plaintiff. valuation of properties discled by defendant in written statement can not affect jurisdiction of court if original property valuation according to plaint is within jurisdiction. preliminary issues will not have ant weight in partition suit unless it goes to the root of the case.purchaser can ask for value of construction in final decree under transfer of property subject to certain conditions or for equities to alott this item to his vendors and other item to plantiff.
prasad
(Querist) 19 February 2011
Dear sir , Ramakrishna Poonekanti thanks for the comment,
Abatement as per limitation took place on 60 th day .Also specefic order passed that effet.If palintiff never preyed about setting aside abatment then how the filing fresh suit permission can make it possible .
out of 4 braches A is palintiff B is defendent holding suit property. whole "C" branch admits partition even they dont hold suit property . Branch "D" is partily with A & partily with B.There is never chance of decree for palitiff "A".
In Original suit only one 17 sq.mt property is N.A but as per revenue record & as per fact 40 Sq.Mt is N.A. So doest is affect suit valuation.
