Madras High Court
Amaravathy vs Swarnamma on 27 April, 2021
1 S.A.(MD)NO.420 OF 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.420 of 2013
Amaravathy ... Appellant/Appellant/
9th defendant/Petitioner
Vs.
1. Swarnamma
2. Marybai
Ammalu(died)
Kumaran Nadar(died)
Thankayyan(died)
Muthayyan(died)
3. Thankappan
Chinnaiah @ Chinnakutty(died)
4. Moni
5. Santha
6. Gangadharan
7. Viswanathan
8. Sankaran
9. Karunakaran
Baby (died)
10. Seelavathi
Kunjuudevi(died)
11.Gowri
12. Jeyakumari(Minor)
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2 S.A.(MD)NO.420 OF 2013
13. Jayaprabha(Minor)
14. Ajithkumari(Minor)
(Minor respondents 12 to 14 are rep. by Court guardian
Mr.Unnikrishnan Nair, Advocate)
15. Russel Raj
16. Rosamma
17. Rethinam
18. Lalitha
19. Subhardra
20. Palamma
21. Prabhakaran
22. Manoharan
23. Kumaresan
24. Selvi
25. Lyla
26. Kalamathi
27. Angel
28. Anand ... Respondents/Plaintiffs and
Defendants 1 to 8, 10,11 to 35/
Respondents
(Respondents 1, 3, 4, 6, 8 to 18 and 20 to 28 remained absent in A.S. in
the lower appellate Court and hence service of notice on them may be
dispensed with in the second appeal)
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 29.01.2013 of
the learned Subordinate Judge, Kuzhithurai, made in A.S.
No.36 of 2008, confirming the Judgment and Decree dated
11.03.2005 on the file of the learned Principal District Munsif,
Kuzhithurai and made in I.A.No.635 of 2002 in O.S.No.199 of
1976 on his file.
For Appellant : Mr.Mr.R.Vijaykumar,
for Mr.T.Selvakumaran.
For R-5 : Ms.J.Anandhavalli
For R-19 : No appearance.
For R-2 & R-7 : No appearance.
***
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3 S.A.(MD)NO.420 OF 2013
JUDGMENT
The ninth defendant in O.S.No.199 of 1976 on the file
of the Principal District Munsif Court, Kuzhithurai, is the
appellant in this second appeal.
2. One T.Swarnamma filed the said suit seeking relief
of partition against as many as eight defendants. In the said
suit, the appellant Amaravathy got impleaded in terms of the
order made in I.A.No.402 of 1977. The ostensible reason for
impleading Amaravathy appears to be that she had purchased
35 cents of land vide Ex.B.6 dated 17.05.1972 from one
P.Chinnakutty Nadar. The said Ex.B.6 appears to be a portion
of 'B' schedule property.
3. Preliminary decree was passed on 09.09.1982 and
the plaintiff was granted 37 ½ cents, while the first defendant
was also given another 37 ½ cents in 'B' schedule property. It
was further decreed that the remaining portion of the 'B'
schedule property belong to defendants 2 to 8.
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4 S.A.(MD)NO.420 OF 2013
4. Now it is stated that this preliminary decree was
put to challenge by way of filing first appeal by the appellant
herein. The first appeal was dismissed for default.
5. The application filed by the appellant herein for
restoring the same was dismissed on merits.
6. Thereafter, the appellant had filed I.A.No.292 of
2001 for passing supplementary preliminary decree. Even
during its pendency, the appellant filed I.A.No.635 of 2002 for
the very same relief. In the meanwhile, I.A.No.152 of 1983
filed by Swarnamma for passing final decree was allowed by
Judgment and Decree dated 30.03.2004.
7. The operative portion of the final decree reads as
follows:-
“6. So in view of the above
circumstances of the case, I hold that 'A' plot
extent about 37.500 cents has been allotted to
the plaintiff according to Ext.C.4 plan. 'B' plot
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5 S.A.(MD)NO.420 OF 2013
has been allotted to the first defendant with an
extent of 37.500 cents. 'C' plot has been allotted
to the 10th defendant with an extent of 53 cents.
'D' plot has been allotted to the 17th defendant
with an extent of 10 cents. 'E' plot has been
allotted to the defendants 22 and 23 for an
extent of 12 cents according to Ext.C.4 plan.
7. In the result, final decree is passed as
per the terms of the preliminary decree and
second preliminary decree in the suit. Petition
allowed. Ex.C.4 plan is appended with the
Decree. “
8. This final decree was questioned by the appellant
herein. She filed an appeal before the Sub Court, Kuzhithurai.
But there was a delay in filing the appeal. The condone delay
petition was dismissed. Challenging the same, the appellant
filed C.R.P.(MD)No.1405 of 2010 before this Court.
9. In the meanwhile, the appellant had filed I.A.
No.635 of 2002 for passing of the supplementary final decree
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6 S.A.(MD)NO.420 OF 2013
and the same suffered dismissal. Questioning the same,
A.S.No.36 of 2008 before the Sub Court, Kuzhithurai was filed
and the same was also dismissed. Challenging the same, the
present second appeal came to be filed. It was admitted on the
following substantial question of law:-
“Whether the Judgments and Decrees
passed by the Courts below in dismissing the
appellant's application for passing
supplementary final decree are vitiated by
illegality, when the appellant claims to stepped
into the shoes of the seventh defendant and
when the appellant was also impleaded as a
party in the preliminary decree proceedings?”
10. C.R.P.(MD)(NPD)No.1405 of 2010 was disposed of
on 30.03.2021 in the following terms:-
“ 6. Admittedly, the application filed by
the petitioner seeking supplementary
preliminary decree has been dismissed and the
same as subject matter of the second appeal
pending in this Court, allotments have been
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7 S.A.(MD)NO.420 OF 2013
made under the final decree only to those
persons, who have obtained a supplementary
preliminary decree. The total extent measures
about 4.14 cents and the allotment made under
the final decree is much less than the actual
extent available in the suit survey number shown
as 'B' schedule property. The petitioner also
claims only 35 cents, if at all he succeeds in the
second appeal and a preliminary decree is
granted in his favour, it will always be open to
him to seek allotment of the remaining property,
which is shown as Plot Nos.F,G & H, which
remain unallotted even in the final decree.
Therefore, I do not think that the petitioner need
to challenge the final decree.
7.Suffice to observe that if the
petitioner succeeds in the second appeal and his
right is declared, he would be entitled to seek 35
cents of land from the remaining property,
subject to the said right, this Civil Revision
Petition is disposed of. No costs.”
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8 S.A.(MD)NO.420 OF 2013
11. Now the question that arises for my consideration
is whether the impugned Judgment deserves to be set aside
and whether I.A.No.635 of 2002 filed by the appellant has to
be allowed.
12. The case of the appellant is that even as per the
preliminary decree dated 09.09.1982, defendants 2 to 8 are
entitled to remaining portion of 'B' schedule property, after
allocation of 35 cents of the land each in favour of the plaintiff
and the first defendant. The appellant's counsel would claim
that the appellant had purchased 35 cents vide Ex.B.6 from
the seventh defendant Thiru.P.Chinnayan. However, as rightly
pointed out by the learned counsel appearing for the fifth
respondent herein, in the affidavit filed in support of the
application, the appellant had pleaded that she had purchased
35 cents of the land from Chinnakutty Nadar. There is no
specific assertion that she had purchased from the seventh
defendant. However, the appellant's counsel wants me to infer
from the attendant circumstances that it is only from the
seventh defendant, she had purchased 35 cents vide Ex.B.6.
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9 S.A.(MD)NO.420 OF 2013
According to the appellant's counsel, in Ex.B.6, the vendor had
described himself as the son of Padmanabhan Nadar. The
property concerns a portion of 'B' schedule in the original suit
in O.S.No.199 of 1976. The appellant had made a categorical
assertion that by virtue of purchase of 35 cents, she had also
become a sharer in the property. I cannot lose sight of the fact
that she has been originally impleaded by virtue of I.A.No.402
of 1977. If the appellant was an utter stranger and alien to the
entire proceedings, she could not have been impleaded in the
first instance. Therefore, considering the overall facts and
circumstances, I am of the view that the appellant has shown
existence of her interest in the property. But then, it is for the
appellant to categorically establish that she has stepped into
the shoes of the seventh defendant.
13. The Courts below had assigned as many as three
reasons for throwing out the application filed by the appellant.
The first reason is that the appellant had already filed I.A.
No.292 of 2001 for the very same relief. Having already filed
the application for the very same cause of action and the very
same relief, the second application filed on the same relief is
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10 S.A.(MD)NO.420 OF 2013
bad in law. The appellant had been castigated for having come
to the Court with unclean hands. The second reason is that in
the meanwhile, final decree had already been passed and that
it had also become final. The third reason is that whether the
so called vendor of the appellant had the necessary title to sell
35 cents of the land in favour of the appellant.
14. Though these three reasons assigned by the
Courts below are weighty, still one basic fact cannot be lost
sight of. The present suit proceedings are one for seeking the
relief of partition. While passing the preliminary decree, the
trial Court had categorically held that defendants 2 to 8 are
entitled to the remaining portion of the 'B' schedule property
after 75 cents were allotted to the plaintiff and the first
defendant. Therefore, the existence of the right of the seventh
defendant cannot be denied. There can be an area of doubt
only as regards the exact share. That he has right in the 'B'
schedule is no longer open to doubt because the preliminary
decree dated 09.09.1982 had admittedly become final.
15. Therefore, when the appellant claims that she is
the purchaser of 35 cents of land from the seventh defendant,
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the appellant ought not to be shown the door on technical
grounds. The fifth respondent need not have any apprehension
whatsoever because the High Court vide order dated
30.03.2021 in C.R.P.(MD)No.1405 of 2010, had categorically
held that the allotments made vide final decree dated
30.03.2004 in I.A.No.152 of 1983 will not be disturbed. It is
seen from the allotments made in the final decree that there
are some portions that have not been allotted to any person.
The appellant herein can only work out her rights from out of
those unallotted portions. The substantial question of law is
answered in favour of the appellant and the impugned
judgments are set aside. However, I am not inclined to remand
the matter. Instead I grant liberty to the appellant to file a
fresh application for passing supplementary preliminary
decree in O.S.No.199 of 1976 on the file of the District Munsif,
Kuzhithurai. The learned District Munsif will number the said
application. However, the burden is on the appellant to
establish that Ex.B.6 was executed by none other than the
person who was shown as the seventh defendant in O.S.No.
199 of 1976 on the file of the District Munsif, Kuzhithurai. The
appellant will have to necessarily work out her rights only
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12 S.A.(MD)NO.420 OF 2013
from out of the unallotted plots as per the final decree dated
30.03.2004 in I.A.No.152 of 1983. The learned trial Munsif
will dispose of the I.A. to be filed by the appellant
expeditiously. The appellant will keep in mind the mandate set
out in the order dated 30.03.2021 in C.R.P.(MD)No.1405 of
2010.
16. This second appeal is allowed on these terms. No
costs.
27.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Subordinate Judge,
Kuzhithurai.
2. The Principal District Munsif,
Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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13 S.A.(MD)NO.420 OF 2013
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.420 of 2013
27.04.2021
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