Madras High Court
Maheen vs Asma Beevi on 9 August, 2021
S.A.(MD)No.192 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.192 of 2013
1.Maheen
2.Ahmedkhan ... Appellants
Vs.
1.Asma Beevi
2.Mohammed Sali
3.Noohukannu
4.Asrat
5.Syed Mohammed
6.Kabeer
7.Beevi ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 26.04.2012 rendered in A.S.No.16 of
2010 on the file of the Subordinate Judge, Kuzhithurai reversing the judgment
and decree dated 06.11.2009 rendered in O.S.No.349 of 2006 on the file of the
Principal District Munisf Court, Kuzhithurai.
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S.A.(MD)No.192 of 2013
For Appellants : Mr.K.Sreekumaran Nair
For Respondents : Ms.J.Anandhavalli for R1
R2 to R7 Exparte
JUDGEMENT
The contesting defendants in O.S.No.349 of 2006, on the file of the
Principal District Munsif, Kuzhithurai are the appellants in this second appeal.
2.The first respondent herein namely, Asma Beevi is the plaintiff. The
suit schedule property measures 33 cents. According to the plaintiff, 8.250
cents out of 33 cents belonged to Syed Mohammed Pillai. After his demise, his
rights devolved on his two sons namely, Mohammed Bahrudin and Mohammed
Noohoo. A daughter by name Fathumal Beevi was born to Mohammed
Bahrudin through his first wife. One Katheeja Beevi was Mohammed
Bahrudin's second wife. Katheeja Beevi begot Asma Beevi and Mohideen
Beevi. Following the demise of the Mohammed Bahrudin, the legal heirs had
entered into a partition, on 18.04.1964. It was also registered as Document No.
1539 of 1964, on the file of the Munchirai Sub Registrar's Office. Mohammed
Bahrudin's brother Mohammed Noohoo executed a gift on 08.02.1972 in favour
of the Katheeja Beevi under document No.266 of 1972. As the result of the
said gift, Katheeja Beevi's share had an accretion and she became entitled to
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S.A.(MD)No.192 of 2013
5.805 cents. Fathumal Beevi was entitled to 1.070 cents. The plaintiff Asma
Beevi was entitled to 1.375 cents. All the three namely, Katheeja Beevi,
Fathumal Beevi and Asma Beevi filed O.S.No.226 of 1976 before the District
Munsif Court, Kuzhithurai, seeking the relief of partition in respect of 8.250
cents in the suit property. The suit came to be dismissed for default
subsequently. While so, Katheeja Beevi executed a gift deed in favour of Asma
Beevi, on 08.05.1995. It was registered as document No.756 of 1995, before
the Munchirai Sub Registrar Office. Fathumal Beevi is also said to have
relinquished her rights in respect of 1.070 cents in favour of the plaintiff.
According to the plaintiff, in view of the execution of the gift deed executed by
Katheeja Beevi and surrender by Fathumal Beevi, she became entitled to 8.250
cents in the said property. She therefore, filed the present suit O.S.No.346 of
2006 seeking the relief of partition in respect of 8.250 cents in the suit property.
3.As many as 8 persons were shown as defendants. Defendants 1 to 6
remained exparte. Defendants 7 & 8 alone resisted the suit. They filed written
statement raising two defences. The first plea was that the suit was bad for
non-joinder of necessary parties. The second plea was that in view of the
dismissal of the O.S.No.226 of 1976 for default on 04.03.1980 under Order 9
Rule 9 of C.P.C, the present suit was barred.
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S.A.(MD)No.192 of 2013
4.The trial Court framed the necessary issues. The plaintiff examined
herself as P.W.1 and her uncle Mohammed Noohoo was examined as P.W.2.
Exhibits A1 and A2 were marked. The 7th defendant examined himself as D.W.
1, while, the 8th defendant was examined as D.W.2. Exhibits B1 to B17 were
marked. After considering the evidence on record, the trial Court dismissed the
suit vide Judgment and Decree, dated 06.11.2009.
5.Aggrieved by the same, the plaintiff filed A.S.No.16 of 2010, before
the Sub Court, Kuzhithurai. The first appellate Court by impugned Judgment
and Decree, dated 26.04.2012 reversed the decision of the trial Court and
granted preliminary decree as prayed for. Challenging the same, this second
appeal came to be filed.
6.The second appeal was admitted on the following substantial questions
of law.
1. Whether the suit for partition without impleading all the necessary
parties is maintainable in law especially when the plaintiff admitted in
the previous suit O.S.No.226/1976 on the file of the Additional District
Munsif, Kuzhithurai that 24 persons had interest in the suit property and
had share in the suit property as proved by Exhibit B9 and B10?
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S.A.(MD)No.192 of 2013
2. Whether the second suit is maintainable under Order 9 Rule 9 of C.P.C.
When the first suit O.S.No.226/1976 by the same plaintiff for the same
relief on the same cause of action was dismissed for default as proved by
Ex.B10?
3. Whether the plaintiff had established her title to the suit property?
7.The learned counsel appearing for the appellants pointed out that the
plaintiff along with her mother and sister had filed O.S.No.226 of 1976,
seeking the very same relief now sought for. In the said suit, as many as 24
persons were shown as defendants. In the present case, only 8 persons have
been shown as defendants. Thus, on the own showing of the plaintiff, 16 other
co-sharers have been left out. That is why the learned trial Judge rightly
non-suited the plaintiff by invoking the principle of non-joinder of necessary
parties.
8.The learned counsel for the appellant relied on the decision reported in
AIR 1997 Mad 226 (Shanmugham and others Vs. Saraswathi and others) in
which it was held that a suit for partition is not maintainable in the absence of
all the co-sharers. The learned counsel also pointed out that when the earlier
suit was dismissed for non prosecution, the present suit would obviously be
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S.A.(MD)No.192 of 2013
barred under Order 9 Rule 9 of the C.P.C. He called upon the Court to answer
the substantial questions of law in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the trial Court.
9.Per contra, the learned counsel appearing for the respondents submits
that the impugned judgment and decree do not call for any interference..
10.I carefully considered the rival contentions and went through the
evidence on record.
11.Let me take up the second substantial question of law first. The suit is
one for partition. It is well settled that the bar that is otherwise applicable under
Order 9 Rule 9 will not apply to partition suits. The cause of partition is in the
nature of continuing cause of action. The second substantial question of law is
answered against the appellant.
12.The other contention is regarding non-joinder of necessary parties. It
is true that in the earlier suit for partition, which was filed by the plaintiff along
with her mother and her sister as many as 24 persons, were shown as
defendants. But in the present case, only 8 persons including the appellants
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S.A.(MD)No.192 of 2013
have been shown as defendants. The learned counsel for the appellant is right
in contending that if all the co-sharers are not impleaded in a suit for partition,
it must be dismissed. But the question is whether such co-sharers have been
left out. I went through the contents of the present plaint as well as the earlier
plaint. In the present plaint, it has been stated that the plaintiff is entitled to
8.250 cents out of the total 33 cents of the suit property. The plaintiff made a
categorical averment that the balance extent of land apart from 8.250 cents in
suit property belongs to the defendants. Since that is the specific case of the
plaintiff, it is for the defendants to show who have been left out. As rightly
pointed out by the learned counsel for the first respondent even in the cross-
examination, except relying on the earlier plaint, the appellants herein have not
shown who are the other co-sharers. In the earlier plaint filed in O.S.No.226 of
1976, these plaintiffs have made similar averments. The suit property measures
33 cents. The appellants claim only 10 cents therein. The appellants appear to
have put up construction also. The plaintiff is claiming only 8.250 cents.
Therefore, if the plaintiff encounters any resistance in the future at the hands of
third parties, the plaintiff cannot take shelter behind this decree. The appellants
had merely named some persons as co-sharers. There is nothing to show how
they are entitled. A plea of non-joinder cannot be urged in vacuum. It must be
backed by particulars. It is not necessary that the written statement must
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S.A.(MD)No.192 of 2013
contain the details. It can also emerge during evidence. If even thereafter, the
plaintiff failed to implead the left out persons who are necessary parties, then,
the suit has to be dismissed. On the other hand, mere plea that the suit is bad
for non-joinder will not advance the case of the defendant. At the end of the
day, the defence must be anchored on a pucca factual foundation. Since the
appellants have not given the particulars as to who are the other co-sharers in
the suit property, I have to answer the other substantial question of law also
against the appellants.
13.Accordingly, this Second Appeal is dismissed. No costs.
09.08.2021
Index : Yes / No
Internet : Yes/ No
skm
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, 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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S.A.(MD)No.192 of 2013
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.192 of 2013
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.192 of 2013
09.08.2021
https://www.mhc.tn.gov.in/judis
