Madras High Court
K. Kandasamy Asari vs K.P. Narayana Kumar on 16 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 16.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.565 of 2009
and
M.P(MD) No.1 of 2009
K. Kandasamy Asari ...Appellant
vs.
K. Parameswaran Thambi (Died)
1. K.P. Narayana Kumar
2. K.P.Manikumar
3. K.P.Srinivasakumar
4. K.P.Amithkumar
5. K.P.Jothikumar
6. K.P.Usha
(Cause title accepted by order of the Court
dated 29.09.2008 made in MP(MD) No.1 of 2018
in SA.Sr.No.41867 of 2008) ... Respondents
Second Appeal filed under Section 100 of CPC to set aside the
decree and judgment made in A.S.No.60 of 1999 on the file of the Sub
Judge, Kulithurai dated 20.02.2007 in reversing the decree and
judgment in O.S. No.46 of 1986 on the file of the I Additional District
Munsif,Kulithurai dated 11.09.1999.
https://www.mhc.tn.gov.in/judis
2
For Appellant : Mr.R.Sundar
For Respondents : Mr.V.Balaji
JUDGMENT
This second appeal has been filed to set aside the decree and
judgment made in A.S.No.60 of 1999 on the file of the Sub Judge,
Kulithurai dated 20.02.2007 in reversing the decree and judgment in
O.S. No.46 of 1986 on the file of the I Additional District
Munsif,Kulithurai dated 11.09.1999.
2. When the matter is taken up for hearing, the learned cousnel
appearing for the appellant / defendant would submit that the first
appellate Court is not right in allowing the Appeal Suit filed by the
plaintiff, as the first appellate Court having accepted the case of the
defendant that the plaintiff never let out the premises in question to
the post office, at the same time the first appellate Court held that the
plaintiff is entitled to get the declaratory relief and the same is
unsustainable in the eye of law. The plaintiff is entitled to get the
property in question based on Ex.A7 is erroneous. Vendor of the
defendant was not added as a party to the earlier suit and the
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judgement is not binding upon the defendant. The plaintiff is entitled
to door No.21/112 at Kiliyur Panchayat and not to door No.4/78 at
Pallur Panchayat. The plaintiff has not given the exact and correct
particulars of property. There is a confusion in the description of the
door number in the evidence. Before the trial court, the suit was
dismissed. The possession and enjoyment of the defendant was upheld
by the appellate Court. The appellate court has considered the
evidence of all the parties. Based on the documents and the evidence
deposed by the witnesses, the appellate Court had come to the
conclusion that the plaintiff was entitled to get the right from the
defendant from 01.08.1984 onwards and recovery of possession and
declaration was also ordered and further ordered the defendant to pay
a sum of Rs.50/- and to hand over possession to the plaintiff within a
period of two months and the said judgment was passed on
20.02.2007.
3. The appeal was filed in the year 2009 and the same has been
prolonged without being considered for a long time. In the meanwhile,
it was submitted that in the year 2018 itself that the sole appellant
died and the appellant has not taken any steps to implead the legal
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heirs even before this matter was listed before this Court on
16.11.2021. 08.12.2021 and 15.12.2021.
4. On 15.12.2021, this Court has directed the learned counsel
for the appellant to file a memo ''for reporting instructions'' or ''no
instructions''. Even today when the matter is taken up for hearing, the
counsel for the appellant is not ready to file a memo and simply seeks
adjourment. The counsel for the respondent submitted that he has
already informed that the appellant died in the year 2018 itself and
till date, they have not taken any steps to implead the legal heirs
within the limitation period and even today, he is not in a position to
say what are the steps taken by him to implead the legal heirs of the
deceased appellant.
5. This Court is of the view since the sole appellant died and in
the absence of any application being filed to implead the legal heirs,
this Court is inclined to dismisss the second appeal in limini.
6. In the result, the second appeal stands dismissed. No costs.
Consequently connected miscellaneous petiion is also closed. As per
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the Judgment of the first appellate court, the defendant is directed to
vacate the premises within a period of two months from the date of
receipt of a copy of this order.
16.12.2021
Index: Yes/No.
Internet: Yes/No.
aav
Note: In view of the present lock down owing to COVID 19 pandemic,
a web copy of the order may be utilised 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, Kulithurai
2. The I Additional District Munsif,Kulithurai
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.565 of 2009
and
M.P(MD) No.1 of 2009
16.12.2021
https://www.mhc.tn.gov.in/judis
