Madras High Court
Ponnuthai vs Ramalingam on 3 August, 2021
1 S.A.(MD)NO.396 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.396 of 2014 and
M.P.(MD)No.1 of 2014
Ponnuthai ... Appellant/1st Respondent/
Plaintiff
Vs.
1. Ramalingam
2. Neerathulingam
3. Lingam ... Respondents 1 to 3/Appellants/
Defendants 1 to 3
4. Angammal ... 4 Respondent/2nd Respondent/
th
4th Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 30.08.2013 in
A.S.No.95 of 2007 on the file of the Sub Court, Srivilliputhur
and by reversing the Judgment and Decree dated 26.09.2007
in O.S.No.343 of 2004 on the file of the Additional District
Munsif Court, Srivilliputhur.
For Appellant : Mr.F.X.Eugene
For R-1 & R-2 : Mr.A.R.M.Ramesh
For R-3 : Mr.R.Ramadurai
For R-4 : No appearance.
***
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2 S.A.(MD)NO.396 OF 2014
JUDGMENT
The plaintiff in O.S.No.343 of 2004 on the file of the
Additional District Munsif, Srivilliputhur, is the appellant in
this second appeal.
2. The appellant filed the said suit for partition
claiming 2/3rd share in the suit properties. The suit items are
two in number. There is no dispute that they originally
belonged to one Dhadan and Karuppi and that they were
eventually settled in favour of their grandson Solaikudumban.
Solaikudumban had three daughters, namely, Solaimalai,
Chinna Peruma and Ramu. Solaimalai had a daughter, by
name, Alagumalai. Alagumalai got married to one
Karuppanan. After the demise of Alagumalai, Karuppanan got
married to Ponnuthai. There is no dispute that Karuppanan
executed a will dated 09.08.1990(Ex.A.6) in favour of the
plaintiff giving her life estate and the remainder in favour of
their son Karuppusamy. Following the demise of the
Solaikudumban, the suit properties devolved on his three legal
heirs. Karuppanan during his life time had purchased 1/3rd
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3 S.A.(MD)NO.396 OF 2014
share from the third daughter of Solaikudumban, namely,
Ramu vide Ex.A.2 dated 06.02.1961. 1/3rd share that devolved
on Solaimalai also fell to the share of Karuppanan. Thus,
Karuppanan had 2/3rd share in the suit properties. 1/3rd share
that devolved on Chinna Peruma was sold by her son Muthiah
in favour of Neeruru vide Ex.A.3 05.06.1961. The plaintiff
claimed that she was entitled to 2/3rd share in the suit
properties while Neeraru's family was entitled to remaining
1/3rd share and that there had been no partition of the suit
items. Hence, seeking the aforesaid relief of partition, she
filed O.S.No.343 of 2004.
3. The suit was resisted by Neeraru's branch.
Neeraru's son Lingam was shown as the third defendant and
defendants 1 and 2 are none other than the sons of Lingam.
They filed written statement contending that the partition had
taken place long time back and that the defendants were
allotted the premises bearing door No.168. According to them,
the suit for partition is not maintainable. Based on the
divergent pleadings, the trial Court framed the necessary
issues. The plaintiff examined herself as P.W.1 and two other
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4 S.A.(MD)NO.396 OF 2014
persons were examined on her side. Ex.A.1 to Ex.A.11 were
marked. An Advocate Commissioner was appointed and he
submitted report and plan and they were marked as Court
exhibits 1 and 2. After considering the evidence on record, the
trial Court by judgment and decree dated 26.09.2007 granted
preliminary decree allotting 2/3rd share in favour of the
plaintiff. The plaintiff was given right to file final decree
petition for obtaining separate possession of 2/3rd share.
4. Aggrieved by the same, the defendants filed
A.S.No.95 of 2007 before the Sub Court, Srivilliputhur. By the
impugned judgment and decree dated 30.08.2013, the appeal
was allowed and the suit was dismissed. Challenging the
same, this second appeal came to be filed.
5. This second appeal was admitted on the following
substantial questions of law:-
“Whether the first appellate Court is
correct in deciding that since because the
plaintiff is not entitled to 2/3rd share, the entire
suit has to be dismissed without moulding the
prayers?
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5 S.A.(MD)NO.396 OF 2014
2. Whether the first appellate Court is
correct, in holding that the second schedule
pathway is the Municipal pathway because the
defendants disclaimed their rights in second
schedule pathway?”
6. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellant and restore the
decision of the trial Court.
7. Per contra the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree passed by the first appellate Court do not call for any
interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
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6 S.A.(MD)NO.396 OF 2014
9. At the very outset, the learned counsel appearing
for the respondents submitted that they are not questioning
the 2/3rd right to which the appellant is entitled to in the suit
properties. His only contention is that the partition was
already effected between Neeraru and Karuppanan several
decades ago. Though the exact particulars could not be
placed, on ground the fact remains that the properties are
being separately enjoyed by the parties. He also pointed out
that Lingam had sold 1/3rd share in the suit item No.2 in
favour of the fourth respondent herein. At present Lingam's
family is residing in door No.168. He also pointed out that a
reading of Ex.A.8 would show that it would probabilise the
defence of prior partition projected by the defendants.
10. Even though the first appellate Court is not
justified in non-suiting the plaintiff on the ground of
non-joinder of necessary parties, still I am of the view that the
appellant cannot have any real grievance in view of the
categorical stand taken by the respondents herein. A mere
perusal of the Advocate Commissioner's report and plan would
show that the appellant is very much in possession and
enjoyment of 2/3rd share in the suit items.
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7 S.A.(MD)NO.396 OF 2014
11. In this view of the matter, the substantial
questions of law are answered against the appellant. With the
above clarification and observation, this second appeal is
dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
03.08.2021
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 Sub Judge,
Srivilliputhur.
2. The Additional District Munsif,
Srivilliputhur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 S.A.(MD)NO.396 OF 2014
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.396 of 2014
03.08.2021
https://www.mhc.tn.gov.in/judis/
