Madras High Court
Ponnusamy Nadar (Died) vs Sudar Olivu Nadar on 26 August, 2021
1 S.A.(MD)Nos.804 & 805 OF 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.804 & 805 of 2008
S.A.(MD)No.804 of 2008
1. Ponnusamy Nadar (Died) ... Appellant/Appellant/
Plaintiff
2. Ramasamy
3. Pattamudaian
4. Ganesan
5. Sermakani
6. Thennammal
7. Pushpam
8. Uchimakali
9. Ponnuthurai
10.Suryaramya
11.Muthusudha
12.Aathi Selvam
(Appellants 2 to 12 are brought on record as LRs. of the
deceased sole appellant vide Order dated 06.07.2021 made in
C.M.P.(MD)Nos.5263, 5298, 5299, 5302, 5303 and 5304 of 2021)
... Appellants
Vs.
1. Sudar Olivu Nadar
2. Veerasangili Nadar(Died)
(R-2 died and R-1 represents R-2 vide Order dated 06.07.2021
made in C.M.P.(MD)Nos.5263, 5298, 5299, 5302, 5303 & 5304 of
2021)
... Respondents/Respondents/
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal with costs through out
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1/13
2 S.A.(MD)Nos.804 & 805 OF 2008
setting aside the judgment and decree of the learned Sub
Judge, Ambasamudram, dated 12.02.2007 in A.S.No.91 of
2006 confirming the judgment and decree of the Additional
District Munsif, Ambasamudram, dated 12.06.2006 in O.S.
No.199 of 2004.
S.A.(MD)No.805 of 2008
1. Ponnusamy Nadar (Died) ... Appellant/Appellant/
Defendant
2. Ramasamy
3. Pattamudaian
4. Ganesan
5. Sermakani
6. Thennammal
7. Pushpam
8. Uchimakali
9. Ponnuthurai
10.Suryaramya
11.Muthusudha
12.Aathi Selvam
(Appellants 2 to 12 are brought on record as LRs. of the
deceased sole appellant vide Order dated 06.07.2021 made in
C.M.P.(MD)Nos.5263, 5298, 5299, 5302, 5303 and 5304 of 2021)
... Appellants
Vs.
Sudar Olivu Nadar ... Respondent/Respondent/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal with costs through out
setting aside the judgment and decree of the learned Sub
Judge, Ambasamudram, dated 12.02.2007 in A.S.No.90 of
2006 confirming the judgment and decree of the Additional
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2/13
3 S.A.(MD)Nos.804 & 805 OF 2008
District Munsif, Ambasamudram, dated 12.06.2006 in O.S.
No.198 of 2004.
For Appellants : Mr.T.S.R.Venkat Ramana
For R-1 : Mr.M.GA.Natraj,
for Mr.M.Ganagasabapathy.
***
COMMON JUDGMENT
Thiru.Ponnusamy Nadar was the appellant in both
these appeals. He filed O.S.No.2 of 2000 on the file of the Sub
Court, Ambasamudram, for partition and separate possession
of 2/3rd share in the suit property which is comprised in
Survey No.830 and measures an extent of 4 acres and 62
cents. The first defendant in the suit was Sudar Olivu Nadar
who had purchased the entire suit property under two sale
deeds(Ex.A.1 and Ex.A.2 dated 19.08.1993) from the second
defendant Veerasangili Nadar. The defendants entered
appearance and also filed written statement. Thereafter,
Sudar Olivu Nadar filed O.S.No.36 of 2002 on the file of the
District Munsif, Ambasamudram, seeking permanent
injunction restraining Ponnusamy Nadar from interfering with
his possession and enjoyment of the suit property. Since the
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subject matter of both the suits was one and the same, at the
instance of Ponnusamy Nadar the injunction suit was
transferred to the Sub Court. Later on account of increase in
pecuniary jurisdiction, both the suits were transferred to the
file of the Additional District Munsif, Ambasamudram. Even
though the partition suit was filed earlier in point of time, the
transferee Court erroneously numbered the injunction suit as
O.S.No.198 of 2004 and the partition suit as O.S.No.199 of
2004. The suits were jointly tried. Sudar Olivu Nadar
examined himself as P.W.1 and his vendor/D2 Veerasangili
Nadar as P.W.2. Ex.A.1 to Ex.A.14 were marked. Ponnusamy
Nadar examined himself as D.W.1 and Ex.B.1 to Ex.B.23 were
marked. After considering the evidence on record, the trial
Court vide judgment and decree dated 12.06.2006 decreed the
injunction suit and dismissed the partition suit. Aggrieved by
the same, Ponnusamy Nadar filed A.S.No.90 of 2006 and
A.S.No.91 of 2006. Both the appeals were heard together and
by the impugned judgment and decree dated 12.02.2007, the
decision of the trial Court was confirmed and both the appeals
were dismissed. Challenging the same, these second appeals
were filed.
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2. S.A.(MD)No.805 of 2008 arises out of the
injunction suit, while S.A.(MD)No.804 of 2008 arises out of the
partition suit. The learned counsel for the appellant
commented that he insisted that the appeal arising out of the
partition suit must be numbered first. I agree with his
contention that whenever there is such transfer of suits, the
first filed suit should be numbered first. The chronology of
filing must be reflected in the suit numbers given by the
transferee Court. They were admitted on the following
substantial questions of law:-
“1. Can plaintiff/respondent file a suit
for bare injunction when a partition suit
challenging his rights had already been filed?
2. Are the Courts below right in
decreeing the suit for injunction against a co-
owner when P.W.2 admitted the family
relationship?
3. Whether the Courts below were right
in accepting oral partition when there is no
pleading or proof for the same?
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4. Whether the Courts below were right
in refusing a partition decree, when admittedly
parties are co-owners? “
3. Heard the learned counsel on either side.
4. The suit property is comprised in Survey No.830,
Keelakadayam Village and measures an extent of 4 acres and
62 cents. The contesting respondent herein, namely, Sudar
Olivu Nadar claims title and possession over the suit property
on the strength of Ex.A.1 to Ex.A.4. Ex.A.1 and Ex.A.2 are sale
deeds, while Ex.A.3 and Ex.A.4 are rectification deeds. The
second defendant Veerasangili Nadar is his vendor. The
purchaser had examined Veerasangili Nadar as D.W.2. D.W.2
had admitted in his evidence that the suit property originally
belonged to three persons, namely, Gnanamuthu Nadar,
Pattamudaiyan Nadar and Irulamadan Nadar. Of course the
learned counsel appearing for the contesting respondent
would assert that the suit property belonged to Irulamadan
Nadar and Pattamudaiyan Nadar and that Gnanamuthu Nadar
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was not their brother. But Sudar Olivu Nadar cannot argue
against the evidence of his own vendor. Veerasangili Nadar
traces his authority to sell the suit property in favour of Sudar
Olivu Nadar in two modes; a) by inheritance from Irulamadan
Nadar and b) by purchase through Ex.A.10 through
Chithiraikanakku Nadar who belongs to Pattamudaiyan Nadar
branch.
5. A mere look at Ex.A.10 would show that
Chithiraikanakku Nadar had sold only undivided share of the
suit property in favour of Veerasangili Nadar. Whether
Chithiraikanakku Nadar could have conveyed 2 acres and 31
cents of undivided share in the suit property in favour of
Veerasangili Nadar is open to grave doubt. The property
belonged to three persons, namely, Gnanamuthu Nadar,
Pattamudaiyan Nadar and Irulamadan Nadar. Pattamudaiyan
Nadar branch will have only 1/3rd undivided share in the suit
property. Chithiraikanakku Nadar hails from Pattamudaiyan
Nadar branch. It is not the case of Chithiraikanakku Nadar
that his undivided share in the suit property had gained
accretion on account of any purchase made from Gnanamuthu
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Nadar branch. There is no evidence to that effect. In any
event, the undisputed fact is that Veerasangili Nadar had only
undivided share in the suit property. There is absolutely no
evidence to establish the plea of oral partition.
6. The learned counsel appearing for the contesting
respondent would claim that Irulamadan Nadar had three
sons, namely, Nayinar Nadar, Masanamuthu and Ramasamy
and that partition took place between them way back in the
year 1947. Apart from the utter paucity of evidence to that
effect, there is nothing on record to show that the suit
property was allotted in its entirety in favour of Nayinar
Nadar. If really partition had taken place, then vide Ex.A.10
Chithiraikanakku Nadar would not have conveyed undivided
share in the suit property. The purchase of undivided share in
the suit property by the second defendant clinches the issue in
favour of the appellants.
7. Though the appellant Ponnusamy Nadar would
claim that he had 2/3rd undivided share in the suit property,
the evidence adduced by him does not really establish the
same. While the precise share of Ponnusamy Nadar in the suit
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property may be open to argument, it is beyond dispute that
Ponnusamy Nadar did have undivided share in the suit
property. While Ponnusamy Nadar is the original co-sharer,
Sudar Olivu Nadar is only a subsequent purchaser. It is well
settled that the purchaser of an undivided share in the suit
property has to sue for partition and work out his rights.
8. I hold that the suit for injunction was patently not
maintainable. Its very filing was an abuse of process. Sudar
Olivu Nadar was shown as the first defendant in the partition
suit filed by Ponnusamy Nadar. If Sudar Olivu Nadar wanted
to get some relief, he should have filed I.A. in the partition
suit. It is well settled that a defendant can also apply for
temporary injunction. Instead, he chose to file an injunction
suit independently after entering appearance in the partition
suit and that too before another Court.
9. I cannot appreciate the conduct of Sudar Olivu
Nadar. A purchaser of undivided share from one co-sharer has
to only seek the relief of partition and cannot seek injunction
against the other co-sharer. The first and second substantial
questions of law are answered in favour of the appellants.
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10. The judgment and decree dated 12.02.2007 made
in A.S.No.90 of 2006 on the file of the Sub Court,
Ambasamudram, confirming the judgment and decree dated
12.06.2006 made in O.S.No.198 of 2004 on the file of the
Additional District Munsif, Ambasamudram, is set aside. S.A.
(MD)No.805 of 2008 is allowed.
11. The judgment and decree dated 12.02.2007 made
in A.S.No.91 of 2006 on the file of the Sub Court,
Ambasamudram, confirming the judgment and decree dated
12.06.2006 made in O.S.No.199 of 2004 on the file of the
Additional District Munsif, Ambasamudram, is set aside. S.A.
(MD)No.804 of 2008 is allowed and the matter is remanded to
the file of the trial Court since the exact extent of share of
Ponnusamy Nadar in the suit property is not clear.
12. The learned counsel appearing for the contesting
respondent would state that after his purchase under Ex.A.1
from Veerasangili Nadar, Sudar Olivu Nadar has been in
possession and enjoyment of the entire suit property. He had
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dug a well. He had also availed subsidies from the
Government schemes. The Government officials have also
done a spot inspection. Though I have held that the suit for
injunction filed by Sudar Olivu Nadar against Ponnusamy
Nadar was not maintainable, I have to necessarily take note of
the prevailing ground reality. The learned counsel appearing
for the appellants would state that the legal heirs of
Ponnusamy Nadar occupy 1/3rd portion. The learned counsel
appearing for the contesting respondent would state that
Sudar Olivu Nadar is occupying the entire suit property.
Though the facts are not quite clear, it is beyond dispute that
Sudar Olivu Nadar had obtained an order of interim injunction
even during the pendency of the suit. His suit eventually came
to be decreed. The decree of injunction was not suspended
during the pendency of the first appeal. The appeal filed by
Ponnusamy Nadar was also dismissed. The learned counsel
appearing for the contesting respondent gives an undertaking
that Sudar Olivu Nadar will extend his fullest co-operation for
concluding the partition suit proceedings within a period of six
months from the date of receipt of a copy of this order. Since
such an undertaking has been given and since for the last 20
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years Sudar Olivu Nadar has had the benefit of injunction, the
said position will continue till the conclusion of the suit
proceedings.
13. It is open to the parties to seek amendment of the
respective pleadings. The parties can also adduce further
evidence. The parties will appear before the Court below
either by counsel or in person on 06.06.2022. The evidence
taken during the joint trial will remain on record. No costs.
26.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Registry to return the records to the Court
below forthwith.
To:
1. The Sub Judge,
Ambasamudram.
2. The Additional District Munsif,
Ambasamudram.
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3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.804 & 805 of 2008
26.08.2021
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
