Anjappa vs Doddakka
2021 Latest Caselaw 10625 Mad

                                                                          C.M.A.No 1454 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 26.04.2021

                                                     CORAM:
                                     THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                               C.M.A. No.1454 of 2021
                                             and C.M.P. No.7602 of 2021

                1.Anjappa
                2.Pillamma
                3.Gowramma
                4.Thimmakka
                5.Rajappa
                6.Ramanna
                7.Lakshmanna                                                     .. Appellants

                                                        Vs

                1.Doddakka
                2.Damodaran
                3.Madhusudharana Rao
                4.R.Sridhar
                5.S.Anuradha
                6.C.Gopal
                7.C.Sasikala
                8.A.Kumaravel                                                  .. Respondents



                          Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Civil
                Procedure Code against the judgment and decree of the learned Additional
                District Judge of Hosur dated 31.07.2020 in A.S. No.31 of 2014 setting aside
                the judgment and decree of the learned Subordinate Judge of Hosur dated
                06.03.2014 in O.S. No.99 of 2006 and remitting the suit to the trial Court for

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                                                                               C.M.A.No 1454 of 2021

                fresh disposal.


                                   For Appellants        : Mr. J.Hariharan

                                   For Respondents       : No appearance

                                                     JUDGMENT

This Civil Miscellaneous Appeal is directed against the judgment and

decree of learned Additional District Judge, Hosur in A.S. No.31 of 2014

remitting the matter to the trial Court for fresh disposal after giving opportunity

to the plaintiff to implead one Ramanna or his legal heirs if the said Ramanna is

not alive and to dispose of the suit afresh in accordance with law.

2. Brief facts that are necessary for the disposal of this appeal are as

follows:

The appellants are defendants 1 to 7 in the suit in O.S. No.99 of 2006 on

the file of Sub Court, Hosur. The first respondent in this appeal is the plaintiff

who filed a suit in O.S. No.99 of 2006 for partition of suit schedule properties

into two equal shares and to allot one such share to him and for other

consequential reliefs. The suit was dismissed by the trial Court after holding

that there was an earlier partition under Ex.B18 dated 30.07.1968. The other

reason for dismissing the suit is non-joinder of necessary party namely the

persons who have purchased the property from the first defendant. The fact that

https://www.mhc.tn.gov.in/judis/

C.M.A.No 1454 of 2021

the plaintiff and the first defendant are daughter and the son of Munuswamy

through his second wife is admitted. It is also admitted in the plaint and in the

written statement that the said Munuswamy, the father of plaintiff and first

defendant had another son through the first wife, by name Ramanna. The said

Ramanna was also a party to the earlier partition under Ex.B18 dated

30.07.1968. The document Ex.B18 dated 30.07.1968, is stated to be a partition

list. The said document is also an unregistered document. It is the case of the

appellants that the plaintiff was well aware of the partition that had taken place

among the father and two sons. It is to be noted that the trial Court specifically

referred to the admission of the plaintiff to the effect that there was no partition

before 30.07.1968 or during the lifetime of plaintiff's father. The plaintiff has

stated in her evidence that the partition was after the lifetime of her father.

However, the trial Court held that there was a partition under Ex.B18 by relying

upon a Will under Ex.B4. The first respondent as against the judgment and

decree of the trial Court dismissing the suit mainly on the grounds that there

was an earlier partition and that the suit is bad for non-joinder of necessary

party, preferred an appeal in A.S. No.31 of 2014 on the file of Additional

District Court, Hosur.

3. The lower appellate Court after considering the fact that the suit is for

partition and the plaintiff has not even impleaded his step brother namely https://www.mhc.tn.gov.in/judis/

C.M.A.No 1454 of 2021

Thiru. Ramanna, came to a conclusion that the suit is liable to be dismissed on

the ground of non-joinder of necessary party namely Thiru. Ramanna and

permitted the plaintiff to implead either the said Ramanna if he is alive or his

legal representatives and remitted the matter giving opportunity to both sides to

adduce further evidence. As against the order of remand, the above civil

miscellaneous appeal is preferred by the defendants 1 to 7.

4. This Court carefully considered the findings of the trial Court while

dismissing the suit. It is unfortunate to notice that the trial Court found that the

suit is bad for non-joinder of necessary parties. However, the finding is on the

basis that somebody who purchased the property from the first appellant was

not impleaded. Since the appellate Court found that Shri. Ramanna is a co-

sharer at least in respect of the properties of father who got some properties

under Ex.B18, the appellate Court was of the view that the suit for partition by

the first respondent is not maintainable without impleading one of the heir of

Munuswamy namely Shri. Ramanna. Since the legal position that there cannot

be an effect decree in the absence of necessary parties in a partition suit is well

settled, the appellate Court found that the co-sharer must be necessarily

impleaded and that without impleading all the legal heirs, a suit for partition is

not maintainable. The trial Court after noticing that the said Ramanna is a co-

sharer at least in respect of the properties of father ought to have held that he https://www.mhc.tn.gov.in/judis/

C.M.A.No 1454 of 2021

should be impleaded for an effective adjudication. The appellate Court after

finding that Ramanna is a necessary party went further and found that it is a fit

case to remit the matter to the trial Court to give an opportunity to both parties

as the plaintiff and appellants are close relatives. Since the findings of the trial

Court without impleading proper and necessary parties are not sustainable, the

lower appellate Court also set aside the findings of the trial Court. Considering

the overall facts and circumstances of the case and the admitted facts, the trial

Court was of the view that instead of dismissing the suit filed by the plaintiff on

the ground of non-joinder of necessary parties, the matter can be remitted back

to the trial Court to avoid filing of a fresh suit for partition.

5. This Court finds no irregularity or illegality in the order of the

appellate Court remitting the matter to the trial Court for fresh disposal after

impleading necessary and proper party namely the other son of father

Munuswamy through his first wife.

6. This Court finds no merit in the civil miscellaneous appeal and

accordingly, the appeal is dismissed. No costs. Consequently, connected

miscellaneous petition is closed.

26.04.2021

Index:Yes/No Speaking order / Non speaking order bkn https://www.mhc.tn.gov.in/judis/

C.M.A.No 1454 of 2021

S.S.SUNDAR. J.,

bkn

To

The Additional District Court, Hosur

CMA. No. 1454 of 2021

26.04.2021

https://www.mhc.tn.gov.in/judis/