Madras High Court
Tmt. Krishna Bai vs Tmt.Yenkobaiammal on 25 August, 2021
S.A.No.475 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.475 of 2021
and C.M.P.No.9077 of 2021
1.Tmt. Krishna Bai
2.Smt. Lakshmi Bai
3.Smt.RukumaniBai
4.Munisamy Rao
Tmt.Mannu Bai (Died)
5.Smt.Geetha Bai
6.Smt.Lalitha Bai
7.Smt.Manjula Bai
8.Indira Bai
9.Narayanan Rao
...Appellants
Vs.
1.Tmt.Yenkobaiammal
2.Munisamy
...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, against the Judgment and Decree dated 24.09.2018
made in A.S.No.07 of 2015 on the file of the Court of Additional
Special Judge, Krishnagiri, confirming the Judgment and Decree
dated 20.08.2013 made in O.S.No.190 of 2011 on the file of the Court
of the District Munsif, Krishnagiri.
1/11
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S.A.No.475 of 2021
For Appellants : Mr.T.Dhanasekaran
JUDGMENT
(This case has been heard through Video conferencing)
The plaintiffs who have lost before the Courts below are before
this Court challenging the concurrent judgment and decree of the
Courts below and the parties are referred to in the same litigative
status as before the Trial Court.
2.The facts in brief which are necessary for disposing of this
Second Appeal herein below narrated:
The plaintiffs have filed a suit for bare injunction restraining the
defendants from interfering with their peaceful possession and
enjoyment of the suit schedule property in O.S.No.190 of 2011 on the
file of the District Munsif Court, Krishnagiri.
3.It is the case of the plaintiffs that the first and fifth plaintiffs
are the wives of one deceased Yenkoba Rao and the other plaintiffs
are their sons and daughters. The first defendant is the mother of the
second defendant. The husband of the first defendant one Narayana
Rao and the said Yenkoba Rao were brothers. The plaintiffs traces
their title to the property to one Munnoji Rao, the father of the
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S.A.No.475 of 2021
Yengoba Rao and Narayana Rao.
4.It is their case that the defendants along with Rathamma
daughter of the first defendant had filed a suit O.S.No.562 of 1980 on
the file of the Additional Special Judge, Krishnagiri for a partition and
separate possession of their 7/18 shares in the property of Munnoji
Rao's share. The preliminary decree was passed on 27.09.1985
followed by a final decree was passed on 30.07.1987 in I.A.No.174 of
1986.
5.The plaintiffs therein thereafter filed execution proceedings in
R.E.P.No.21 of 2000 in respect of acre 1.85 cents in S.No.41/4 and an
extent of acre 0.39 cents in S.No.47/2 etc and taken delivery of the
same. The plaintiffs would submit that the remaining 11/18 shares in
the properties belonged to the plaintiffs, Venkubai, Krishna bai,
Yashoda Bai and Sandhu Bai. Venkubai and Krishna bai died and
therefore their legal heirs Yashoda, Sandhu Bai and the plaintiffs are
entitled to the entire suit properties. The other co-sharers have not
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S.A.No.475 of 2021
joined in the suit and therefore, the plaintiffs have filed a suit for
themselves and on behalf of other co-sharers as well. The plaintiffs
would also submit that they have taken out an application in the
earlier suit O.S.No.562 of 1980 to declare their title in the properties
around the year 2009. However, the petition could not be taken on
file for want of back records. Taking advantage of this nebulous state,
the defendants are attempting to interfere with the possession of the
remaining properties by felling the trees in the suit properties.
Therefore, the suit filed.
6.The first defendant had filed written statement which is
adopted by the second defendant wherein they would inter alia deny
the allegations contained in the Plaint at the outset that the suit is not
maintainable in the light of the earlier suit O.S.No.562 of 1980 for the
very same relief. They would further submit that they are only in
enjoyment of the properties allotted to them and they have not
encroached into any other portion of the properties. The suit itself
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S.A.No.475 of 2021
was totally misconceived.
7.The Trial Court had framed the following issues:
1.thjpfs; jhth brhj;Jfspy; rl;lgoahd RthjPdj;jpy;
cs;shh;fsh?
2.thjpfs; nfhhpa[s;sthW epue;ju cWj;Jf;fl;lis
ghpfhuk; bgw mUfh;fsh?
3.tHf;F %yk; cz;ikahdjh?
4.ntW vd;d ghpfhuk;?
8.The first plaintiff had examined herself as PW1 and had
marked Exs.A1 and A4 to support her case. The defendants on their
side have examined three witnesses and marked Exs.B1 to B10. The
Trial Court after considering the evidence on record and the pleadings
dismissed the suit. Aggrieved by which, the plaintiffs have filed
A.S.No.7 of 2015 on the file of the Additional Special Judge,
Krishnagiri. The learned Judge also confirmed the findings of the
Trial Court and dismissed the suit. Challenging the same, the
plaintiffs are before this Court.
9.Mr.T.Dhanasekaran made his submission for an admission.
He would contend that the plaintiffs are entitled to a 11/18 shares in
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S.A.No.475 of 2021
the properties and this fact has been admitted by the defendants in
their written statement itself. He would submit that the first
defendant as DW1 has admitted as follows in his cross-examination:
“nkw;go gp.th.rh.1 jdJ FWf;F tprhuizapy,;
“jdf;F xJf;fpaJ nghf rh;nt vz;fspy; kPjKs;s ghfq;fs;
thjpfSf;Fk;, 1-k; thjpfspd; jhahh;
btq;nfhghak;khSf;Fk;, mtuJ rnfhjhpfshd
fpU#;zhgha;, anrhjhgha,; re;Jgha; MfpnahUf;F
xJf;fg;gl;lJ vd;why; rhpjhd;.”
10.Further, the learned counsel would contend that having
considered so the Courts below ought to have accepted the above
evidence and decreed the suit filed by the plaintiffs. However, to a
question posed by the Court as to the details of the properties that has
been subject matter of the earlier suit i.e.O.S.No.562 of 1980 and
which has been allotted to the shares of the defendants, the learned
counsel was unable to clarify the same since the plaint does not
contain the said details.
11.A perusal of the judgment of the Courts below, who have in a
very great detail analysed the evidence both oral and documentary
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would indicate that the plaintiffs who have come forward with a
pleading that the suit was being filed in respect of the co-sharer as
well by their conduct have demonstrated that they are working against
the interest of the co-sharer. The Courts below have relied upon the
evidence of PW3 in this regard and they have held that the suit is bad
for non-joinder of necessary parties.
12.That apart, it is also seen that the plaintiffs have been filing
one proceeding after the other in respect of very same property.
Ex.B5 is the certified copy of the decree in O.S.No.5 of 2003 dated
19.02.2007 on the file of the District Munsif Court, Krishnagiri which
is filed by the plaintiffs 1 and 5 against the defendants in this suit as
well as one Rathanammal for relief of declaration and permanent
injunction in respect of item No.1 of the suit schedule property and
S.No.41/1A and S.No.114. This suit has been dismissed after contest.
Exs.B6 and B7 would show that the plaintiffs 1 to 3 have filed a suit
O.S.No.161 of 1996 on the file of the Sub Court, Krishnagiri against
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S.A.No.475 of 2021
the defendants herein Vengubai, Krishna bai, Yashoda, Santhu bai,
Yenkobaiammal and Rathammal for a partition in respect of the suit
properties. The suit was thereafter dismissed as not pressed and the
filing of this suit has been deliberately suppressed in the plaint filed
by the plaintiffs. Admittedly, the properties have been allotted to the
defendants by metes and bounds pursuant to the Final Decree in
I.A.No.174 of 1986 in O.S.No.562 of 1980 and the possession has also
been delivered in R.E.P.No.21 of 2000. The defendants have
categorically denied the fact that they have interfered in the portion of
the suit properties by felling trees falling to the share of the plaintiffs.
The Defendants have raised the issue of non-joinder of necessary
parties since it is their case that the remaining extent of 11/18 shares
does not exclusively belong to the plaintiffs but it belongs to other
sharers as well who have not been made as parties to the proceedings.
13.The documents filed on the side of the defendants clearly
reveal that the plaintiffs have been filing one proceeding after the
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S.A.No.475 of 2021
other without allowing a quietus in respect of the properties allotted to
the share of the plaintiff.
14.That apart, without having their rights declared with
reference to the specified portions of the properties, the suit filed in
respect of the undivided share of the properties belonging to other
sharer cannot be maintained. That apart, the Courts below have found
that the plaintiffs have not been able to substantiate their contentions
that the defendants have been disturbing their possession and have
tried to encroached into the properties other than which has been
allotted to them. Therefore the cause of action pleaded is non-existent.
15.The plaintiffs have not made out a case warranting
interference of this Court in this Second Appeal. No Substantial
Question of Law has been made out. Consequently, the Second
Appeal is dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
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S.A.No.475 of 2021
25.08.2021
Index : Yes/No
Internet : Yes/No
Speaking order: Yes/No
pam
To
1.The Additional Special Judge,
Krishnagiri.
2.The Court of the District Munsif,
Krishnagiri.
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S.A.No.475 of 2021
P.T. ASHA, J.
pam
S.A.No.475 of 2021
25.08.2021
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