Madras High Court
K.Manoharan vs R.Suredhra Gurusamy on 1 August, 2024
CMA.(MD)No.468 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01/08/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.468 of 2021
and
CMP(MD)No.4071 of 2021 and 4588 of 2024
1.K.Manoharan
2.C.Seenivasan : Appellants/
Respondents 4 to 6/
Defendants 4 and 6
Vs.
1.R.Suredhra Gurusamy
2.R.Rajendran
3.K.Saraswathi
4.K.Anitha
5.K.Brindha
6.M.Amarjothi (died) : Respondents 1 to 6/
7.R.Kaliammal Appellants/Plaintiffs
8.Shanthi
9.Vijayalakshmi
10.K.Ponraj
Respondents 11 to 13 are
brought on record as Lrs
of the deceased 6th respondent,
vide Court order, dated
28/04/2023 made in CMP(MD)
Nos.1332, 1334 and 1336 of 2023
in CMA(MD)No.468 of 2021) : Respondents 7 to 10/
Respondents 1 to 3& 5/
Defendants 1 to 3 & 5
PRAYER:-Civil Miscellaneous Appeal is filed under
Order 41 Rule 1 and Section 96 of the Civil Procedure
Code, to set aside the judgement and decree passed in AS
No.40 of 2017 on the file of the District Court (Fast
Track) and Mahila Court, Theni, dated 07/08/2020,
remanding the judgment and decree, dated 05/11/2016 in OS
No.143 of 2013 on the file of the Sub Court, Theni.
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CMA.(MD)No.468 of 2021
For Appellants : Mr.M.V.Venkateseshan
Senior counsel
for Mr.S.Vellaichamy
For R1 to R3 : Mr.T.Wins
For 6th Respondent : Died
For R7 to R10 : No appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed against the judgement and decree passed in AS No.40 of 2017 by the the District Court (Fast Track) and Mahila Court, Theni, dated 07/08/2020 remanding the judgment and decree, dated 05/11/2016 passed in OS No.143 of 2013 by the Sub Court, Theni.
2.The facts in brief:-
Suit in OS No.143 of 2013 was filed by the first respondent herein and others against Kaliammal and others arraying these appellants namely K.Manoharan and C.Seenivasan as defendants 4 and 6 with the following averments:-
The suit property originally belonged to one Sathurappan Maniyam. He had one son by name Ramakrishnan and daughters namely Ramuthai, Lakshmi and another Ramuthai. All of them died now. Ramakrishnan had four children and two daughters namely Ramraj, Surendra https://www.mhc.tn.gov.in/judis 2/15 CMA.(MD)No.468 of 2021 Gurusamy, Rajendran and Kanagaraj, Amarjothi and Vijayalakshmi. The elder Ramuthai had two sons namely Manoharan and Ponraj. The said Lakshmi and another younger Ramuthai died issueless. Ramraj also died leaving behind his wife Kaliammal and his daughter by name Santhi as his legal heirs. Kanagaraj also died leaving behind his wife Sarswathi and his daughters namely Anitha and Brinda as his legal heirs. Daughters of Sathurappan Maniyam were married long back and living with their family members separately. So, Ramakrishnan alone is entitled to the share left by Sathurappan Maniyam. Sathurappan Maniyam died in 1968. From the date of death of Sathurappan Maniyam, Ramakrishnan and his family members enjoying the suit properties as absolute owners. Ramakrishnan died in 1994 and his wife also.
3.The plaintiffs 1, 2, 6 and the 3rd defendant are entitled to 1/6th share in the suit properties. The defendants 1 and 2 are entitled to 1/6th share. But the plaintiffs 3 to 5 are entitled to 1/6th share. Kali Thevar is the husband of elder Ramuthai and the father of the defendants 4 and 5 executed two settlement deeds on 30/05/2003 in favour of the defendants 4 and 5 settling his half share in the properties. Those settlement deeds are not valid under law. Kali Thevar has no right in the https://www.mhc.tn.gov.in/judis 3/15 CMA.(MD)No.468 of 2021 properties. The defendants 4 to 6 created a sale deed, dated 16/06/2003 as if one Ponraj agreed to sell his half share to Manoharan and Srinivasan. The defendants 4 and 6 filed a suit in OS No.36 of 2008 before the Sub Court, Periyakulam against the 5th defendant for specific performance. The suit was decreed on 30/01/2009. EP was filed in EP No.65 of 2009. Sale deed was obtained on 03/02/2010.
4.With these averments, the suit is filed for partition, permanent injunction, etc.
5.The defendants 4 and 6 filed statement stating that the suit property belongs to Kali Thevar ancestrally. In 1986 during UDR scheme, patta was issued in favour of Kali Thevar. The plaintiffs had no right in the properties after the decree in OS No.36 of 2008. The suit is filed with the connivance of the other defendants. For more than 27 years, the plaintiffs are out of possession. The suit is bad for non-joinder of necessary parties, since the legal heirs of Sathurappan Maniyan are not added as parties. Similarly, the other family members are also not added in the plaint. https://www.mhc.tn.gov.in/judis 4/15 CMA.(MD)No.468 of 2021
6.On the basis of the pleadings, the following issues were framed by the trial court:-
1.Whether the plaintiffs are entitled to the relief of partition as prayed for?
2.Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
3.Whether the suit is bad for non- joinder of necessary parties?
4.What other reliefs, the plaintiffs are entitled to ?
7.Additional issues was framed on 31/08/2016, whether the suit is barred by limitation?
8.Before the trial court, on the side of the plaintiffs, 2 witnesses were examined and 8 documents were marked. On the side of the defendants, one witness was examined and 8 documents were marked.
9.At the conclusion of the trial process, the trial court dismissed the suit finding that the plaintiffs failed to establish the right and title of Sathurappan Muniyam.
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10.Regarding the Issue No.2, it was found that all the legal heirs of the Sathurappan Muniyam were not impleaded as parties in the suit. So, the suit is bad for non-joinder of necessary parties. The plaintiffs did not establish the possession for long year of 27. The suit filed by the plaintiffs is barred by limitation also.
11.Against which, appeal was preferred by the plaintiffs before the Fast Track Court, Theni in AS No.40 of 2017. The appellate court differed from the trial court findings that there was no proper explanation by the appellants as to how the properties, which were originally standing in the name of Sathurappan Maniyam and later, Kali Thevar was issued with patta during UDR survey. Since Sathurappan Muniyam was issued with settlement patta, it will have overriding the effect upon the UDR patta issued in favour of Kali Thevar.
12.Regarding the issue of non-joinder of necessary parties, the appellate court recorded a finding that the trial court has correctly found that the suit is bad for non-joinder of necessary parties.
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13.In the appeal proceedings, the plaintiffs filed a petition under Order 1 Rule 10 CPC. The appellate court allowed that application, remitting the matter back to the trial court for fresh consideration in view of the development.
14.Against which, this appeal is preferred by the appellants questioning the order of remand.
15.Heard both sides.
16.A short point for consideration. The trial court on the basis of the UDR patta proceedings, dismissed the suit of the plaintiffs, but the appellate court relied upon the settlement register namely SLR issued in favour of Sathurappan Maniyam found that since Sathurappan Muniam was issued with patta during the settlement proceedings under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, that patta will confer title upon Sathurappan Maniyam and after his death, his legal heirs. Patta issued in favour of Kali Thevar, who is the father of the appellants though conferred patta during the UDR proceedings, it will not have overriding effect. It allowed the application filed by the plaintiffs under https://www.mhc.tn.gov.in/judis 7/15 CMA.(MD)No.468 of 2021 Order 1 Rule 10 CPC to implead all the legal-heirs of Sathurappan Muniyam, since the suit is filed for partition. Further particulars with regard to the Interim Application is not available in the judgment. Now whatever it may be, that application was also allowed. When Order 1 Rule 10 CPC application is allowed, naturally the plaint got to be amended for the parties impleaded, opportunity must be given to put forth their plea.
17.Before, we go further, let me extract Order 1 Rule 10(4) CPC hereunder:-
“(4)Where defendant added, plaint to be amended.-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.”
18.The next course available to the Court is to permit the plaint to be amended. When the plaint is amended, as narrated above, notice must be issued to the https://www.mhc.tn.gov.in/judis 8/15 CMA.(MD)No.468 of 2021 newly added parties and they must be given opportunity to put forth their plea as mentioned above.
19.Now the question, which arises for consideration is whether this exercise might have been undertaken by the appellate court itself.
20.The learned Senior counsel appearing for the appellants would submit that there is no necessity for the suit to be remanded back to the trial court. He is also touching the merits of the matter. That we will address later.
21.Order 41 Rule 23 CPC reads as follows:-
“23.Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from https://www.mhc.tn.gov.in/judis 9/15 CMA.(MD)No.468 of 2021 whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
22.Rule Rule 23 CPC is not applicable to the present matter, since the suit was disposed of on merits.
23.Rule 23(A) CPC reads as follows:-
“23.A.Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellant Court shall have the same powers as it has under Rule 23.”
24.Here, the appellate court exercised the power in remanding the issue, in view of the petition under Order 1 Rule 10 CPC.
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25.Coming to the grievance expressed by the appellants that the appellate court ought to have taken the usual course.
26.We will refer the Rule 24 CPC. The Rule 24 also come to play, since additional pleadings are to be raised by the parties. On the basis of the pleadings, evidence must be let. The application under Order 1 Rule 10 CPC cannot be treated like an application under Order 41 Rule 27 CPC. Only in case of application under Order 41 Rule 27 CPC, the appellate court, instead of remitting the matter to the trial court, may undertake the exercise of recording the evidence and dispose the matter as indicated under Rule 28. Here, such is not the situation.
27.Now coming to the argument advanced on either side, the learned Senior counsel appearing for the appellants would submit that SLR is, dated 11/01/2013 and only adangal was produced by the plaintiff and there is a clear finding by the trial court that title was not proved. But contra is the finding of the appellate court without any evidence. He would further submit that if really the suit property belongs to Sathurappan Maniyam, it would have been subject matter of the partition deed, https://www.mhc.tn.gov.in/judis 11/15 CMA.(MD)No.468 of 2021 dated 07/11/1988 entered between the childrens of Sathurappan Maniyam. The xerox copy of the partition deed is produced by the appellants. But this document was neither produced before the trial court, nor before the appellate court. Not even an application under Order 41 Rule 27 is filed by the appellants even before this court. Without filing all those petitions, straightaway in the additional type set of documents, this document is enclosed. Even if we take the document into consideration, no finding can be recorded by this court with regard to the title. Proper evidence must be let in by the parties with regard to this fact. If the evidence is let in by the parties with regard to this fact, the appellants can also be benefited. So for their own benefit, the order of remand ought not to have been challenged by the appellants. So liberty is granted to the appellants herein to file proper application before the trial court itself to lead additional evidence.
28.The next argument is that the appellants having failed claim petition before the Execution Court, wants second round of litigation in the form of the suit and appeal proceedings. I am not touching upon this issue also, which can be taken into account by the trial court. Similarly, I am not also touching upon the issue with regard to the title.
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29.In the light of the above, if any discussion or observation is made with reference to the title of the property, of course, which is not required now in this matter, may cause unnecessary prejudice in the mind of the parties before the trial court. So, I am consciously avoiding discussion regarding the title.
30.For all these reasons stated above, I am not convinced with any of the argument advanced by the appellants to set aside the order of remand. As mentioned above, the order of remand can be utilized by the appellants themselves to their advantage by producing additional evidence in the form of certified copy of the partition deed, dated 03/11/1988.
31.So, I find that the order of remand passed by the appellate court on this aspect cannot be interfered. Because this exercise cannot be taken by the appellate court.
32.In the result, the appeal fails and the same is dismissed. The order of remand is sustained, of course there shall be a direction to the trial court to permit the parties to lead additional evidence, after adding new parties and may decide the matter afresh without being https://www.mhc.tn.gov.in/judis 13/15 CMA.(MD)No.468 of 2021 influenced by any of the observation made either by it or by the appellate court or by this court in this matter. No costs. Consequently connected Miscellaneous Petitions are closed.
01/08/2024 Index:Yes/No Internet:Yes/No er To,
1.The Fast Track Court.
Mahila Court, Theni.
2.The Sub Court, Theni.
3.The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 14/15 CMA.(MD)No.468 of 2021 G.ILANGOVAN, J er CMA(MD)No.468 of 2021 01/08/2024 https://www.mhc.tn.gov.in/judis 15/15