Kannammal vs Saraswathi
2021 Latest Caselaw 1034 Mad

                                                     S.A..No.1134 of 2008



        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                        DATED :     19.01.2021

                              CORAM

         THE HONOURABLE MR. JUSTICE T. RAVINDRAN

                         S.A.No. 1134 of 2008
                                 and
                          M.P. No.1 of 2008

1. Kannammal
   W/o. Late Ayyasamy

2. Pushpa
   W/o. Gurusamy

3. Rajeswari
   D/o. late Ayyasamy

4. Murugesan                                           ... Appellants
                                  Vs.
Saraswathi
D/o. late Ponnusamy                                   ... Respondent

Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code against judgment and decree dated 28.01.2005 made in A.S.No.38
of 2004 on the file of the Principal Sub Court, Gobichettipalayam
confirming the judgment and decree dated 29.06.2004 made in
O.S.No.15 of 1997 on the file of the District Munsif Court,
Sathyamangalam.

Page 1 of 19
                                                             S.A..No.1134 of 2008




                       For Appellants      : Mr. N. Manokaran
                       For Respondent      : Mr. R.T.Doraisamy


                                 JUDGMENT

Challenge in this second appeal is made to the judgment and

decree dated 28.01.2005 passed in A.S.No.38 of 2004 on the file of the

Principal Subordinate Court, Gobichettipalayam, confirming the

judgment and decree dated 29.06.2004 passed in O.S.No.15 of 1997 on

the file of the District Munsif Court, Sathyamangalam.

2. For the sake of convenience, the parties are referred to as per

their rankings in the trial court.

3. The defendants in O.S. No.15 of 1997 are the appellants in

the second appeal.

4. Suit for partition.

5. The deceased first plaintiff, namely, Ponnusamy has levied

the suit for partition against the defendants on the footing that the suit

property originally belonged to his father Kullappa Asari @ Kulla Asari

by virtue of the sale deed 02.12.1949, the copy of which sale deed has

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been marked as Ex.A1 and his further case is that, his father died leaving

behind him and his two brothers, namely, Arumugam and Ayyasamy and

after the demise of his father, both the deceased first plaintiff, Arumugam

and Ayyasamy were enjoying the suit property in common. It is further

stated that the daughters of Kullappa Asari @ Kulla Asari had already

got married and also died prior to the demise of Kullappa Asari @ Kulla

Asari and Kullappa Asari @ Kulla Asari died on 13.12.1968 and his

Death Certificate has been marked as Ex.A2. Further it is putforth by the

plaintiff that his brother Ayyasamy died in the year 1978 leaving behind

the defendants 1 to 4 as his legal heirs. According to the deceased first

plaintiff, after the demise of Ayyasamy, he migrated to Karnataka State

with his family for his livelihood and also further put forth the case that

his brother Arumugam died in the year 1993 without marriage and

subsequently, according to the deceased first plaintiff, after he had

decided to settle in the village, the defendants who are the legal heirs of

the deceased Ayyasamy, refused to permit him to enjoy the suit property

in common along with them and infact, the defendants also laid a suit

against him for the relief of permanent injunction in O.S.No.194/1994,

S.A..No.1134 of 2008

on the file of the District Munsif Court, Sathyamangalam, which came to

be dismissed. Hence, inasmuch as the defendants had refused to allow

him to enjoy the suit property in common as one of the lawful sharers,

according to the deceased first plaintiff, he issued a notice on 16.09.1996

to the defendants seeking for the partition of his half share in the suit

property. Since the defendants, despite the receipt of the notice, failed to

comply with the demand made therein, according to the deceased first

plaintiff, the suit has been laid for partition.

6. Pending suit, the deceased first plaintiff died and his wife

has been added as the second plaintiff and subsequently the second

plaintiff having died, her daughter Saraswathi has been added as the third

plaintiff.

7. In the written statement, the defendants challenged the claim

of the deceased first plaintiff that he is the son of Kullappa Asari @

Kulla Asari. That the suit property originally belonged to Kullappa Asari

@ Kulla Asari by way of the sale deed dated 02.12.1949 is not disputed

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by the defendants. According to them, Kullappa Asari @ Kulla Asari

had only two sons, namely, Ayyasamy and Arumugam and after his

demise, his two sons were enjoying the suit property in common and

therefore, according to the defendants, the deceased first plaintiff is

totally a stranger to the suit property and has no right or share in the

same. The contention of the defendants is, therefore, that inasmuch as

the deceased first plaintiff is not a legal heir of the deceased Kullappa

Asari @ Kulla Asari and not been in the possession and enjoyment of the

suit property at any point of time, hence according to them, the suit laid

by the plaintiff for partition is liable to be dismissed.

8. The daughters of Kullappa Asari @ Kulla Asari, according

to the defendants, never claimed any right over the suit property and also

put forth the case that one Arumugam had executed the registered release

deed dated 02.05.1960 in favour of Kullappa Asari @ Kulla Asari.

Therefore, it is put forth by the defendants that it is only the deceased

Ayyasamy who was in the exclusive possession and enjoyment of the suit

property after the demise of Kullappa Asari @ Kulla Asari and thereafter

S.A..No.1134 of 2008

the deceased Ayyasamy subsequently demised, the defendants, on

account of the long and continuous enjoyment of the suit property, have

acquired the title to the suit property by way of the adverse possession

and even assuming that the deceased first plaintiff has any right over the

suit property, his right has been extinguished on account of limitation

and further put forth that the suit is bad for non joinder of necessary

parties and accordingly prayed for the dismissal of the plaintiff's case.

9. In support of the plaintiff's case, P.Ws.1 to 3 were examined

and Exs.A1 to A24 were marked. On the side of the defendants, D.Ws. 1

and 2 were examined and Exs.B1 to B3 were marked.

10. On a consideration of the oral and documentary evidence

adduced in the matter and the submissions put forth by the respective

parties, the courts below were pleased to declare that the plaintiff is

entitled to the half share in the suit property and accordingly, granted the

preliminary decree in favour of the plaintiff. Impugning the judgment

and decree of the courts below, the present second appeal has been laid

by the defendants.

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11. The deceased first plaintiff has laid the suit claiming

partition in the suit property on the footing that he is the legal heir of the

deceased Kullappa Asari @ Kulla Asari. That the suit property

originally belonged to Kullappa Asari @ Kulla Asari is not in dispute

and the copy of the sale deed in the name of Kullappa Asari @ Kulla

Asari dated 02.12.1949 has been marked as Ex.A1. Kullappa Asari @

Kulla Asari died on 13.12.1968 and the same could be evidenced from

his death certificate marked as Ex.A2. According to the contesting

defendants the deceased first plaintiff is not the legal heir of Kullappa

Asari @ Kulla Asari, on the other hand, only Arumugam and Ayyasamy

are the sons of the deceased Kullappa Asari @ Kulla Asari and further

put forth the case that the daughters of Kullappa Asari @ Kulla Asari,

never claimed any right over the suit property. The plaintiff has also put

forth the case that the daughters of the Kullappa Asari @ Kulla Asari had

died even prior to the demise of Kullappa Asari @ Kulla Asari. From the

sale deed dated 21.06.1982 marked as Ex.A10, as rightly held by the

courts below, it is found that the sons of Kullappa Asari @ Kulla Asari,

namely, Ponnusamy and Arumugam had alienated the property to one

S.A..No.1134 of 2008

Palanisamy. As rightly concluded by the courts below, when the

deceased first plaintiff has alienated the property along with his brother

Arumugam describing themselves as the sons of Kullappa Asari @ Kulla

Asari and when it is noted that the fourth defendant, examined as D.W.1

pleads complete ignorance about the abovesaid sale transaction, as

rightly held by the courts below, the deceased first plaintiff Ponnusamy is

one of the sons of Kullappa Asari @ Kulla Asari. It is not the case of the

defendants that Arumugam, one of the vendors under Ex.A10 is not the

son of Kullappa Asari @ Kulla Asari. Furthermore, the notice sent by

the Municipality with reference to the payment of the property tax

marked as Ex.A12 would go to show that the same had been issued to

both the deceased first plaintiff and the first defendant and in the same, it

has been mentioned that the first plaintiff Ponnusamy Asari, Ayyasamy

Asari and Arukutti Asari are the sons of Kullappa Asari @ Kulla Asari.

D.W.1 would plead ignorance about the demand notice abovestated. It is

not in dispute that Arumugam is also known as Arukutti. Therefore, it is

evident from the demand notices sent by the Municipality regarding the

property tax viz-a-viz the suit property marked as Exs.A12 and A13 that

S.A..No.1134 of 2008

Kullappa Asari @ Kulla Asari had three sons, namly, Ponnusamy,

Ayyasamy and Arukutty @ Arumugam, all the abovesaid documents also

would fortify the case of the plaintiff that the deceased first plaintiff is

one of the sons of Kullappa Asari @ Kulla Asari. Furthermore,

considering the evidence of P.Ws.2 and 3, it is seen that the deceased

first plaintfiff is the son of Kullappa Asari @ Kulla Asari and after his

demise, the deceased first plaintiff and Ayyasamy had been residing in

the suit property and Kullappa Asari @ Kulla Asari had three sons and

despite cross examination, nothing has been culled out from them to

disbelieve their evidence particularly as regards the status of the

deceased first plaintiff as the son of Kullappa Asari @ Kulla Asari.

Furthermore, D.W.2 Chinnannan examined on behalf of the defendants

also would admit during the course of cross examination that the

deceased first plaintiff is the eldest son of Kullappa Asari @ Kulla Asari

and therefore, it is evident that the deceased first plaintiff, as the legal

heir of Kullappa Asari @ Kulla Asari, is entitled to claim the share in the

suit property.

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12. As above pointed out, one Arumuga Asari has executed the

Release Deed in favour of Kullappa Asari @ Kulla Asari. The

defendants are the legal heirs of the deceased Ayyasami. Though the

defendants would claim that the deceased first plaintiff is not the legal

heir of the Kullappa Asari @ Kulla Asari. However, to bring out the

truth, the defendants have not come forward to produce the legal heir

certificate of Kullappa Asari @ Kulla Asari for holding that the deceased

first plaintiff is not the son of Kullappa Asari @ Kulla Asari. Therefore,

considering the abovesaid factors in toto, it is noted that the courts below

had rightly concluded that the deceased first plaintiff, namely,

Ponnusamy is one of the sons of Kullappa Asari @ Kulla Asari and the

brother of Ayyasamy.

13. Inasmuch as the suit property is the property of the

Kullappa Asari @ Kulla Asari, thus it is noted that the deceased first

plaintiff is entitled to claim the half share in the suit property as put forth

by him.

S.A..No.1134 of 2008

14. The main defence taken by the defendants is that the

deceased first plaintiff at no point of time enjoyed the suit property.

However, considering the documents put forth by the plaintiff,

particularly, the kists receipts, all would go to show that the deceased

first plaintiff during certain faslis, had been enjoying the suit property

and the kists receipts in the name of Kullappa Asari @ Kulla Asari have

also been exhibited in the matter on behalf of the plaintiff. All put

together would go to establish that the deceased first plaintiff was also in

the possession and enjoyment of the suit property.

15. According to the deceased first plaintiff, he had migrated to

Karnataka for his livelihood and thereafter the suit property was in the

possession and enjoyment of Ayyasamy and subsequent to his demise,

with the defendants. According to the defendants, on account of their

continuous, long and uninterrupted possession and enjoyment of the suit

property over the statutory period, they had prescribed title to the suit

property by way of the adverse possession. However, as rightly

concluded by the courts below, no single document has been projected by

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the defendants to show that they had been in the possession and

enjoyment of the suit property at any point of time, particularly, after the

demise of Kullappa Asari @ Kulla Asari or Ayyasami. Even with

reference to the enjoyment of the suit property by the deceased

Ayyasami, there is no material placed on the part of the defendants.

Exs.B1 to B3 do not, in any manner, point to the possession and

enjoyment of the suit property by the defendants hostile to the right of

the plaintiff. Therefore, the courts below are found to be justified in

declining the plea of adverse possession put forth by the defendants for

claiming exclusive title to the suit property.

16. The defendants have not taken the plea of partial partition

in the written statement. Even during the course of evidence they have

not put forth any case that Kullappa Asari @ Kulla Asari died leaving

not only the suit property but also the other properties, which are liable to

be partitioned. Therefore, the plea of partial partition now taken in the

second appeal does not merit acceptance.

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17. The counsel appearing for the defendants would contend

that the suit for partition laid by the plaintiff is bad for non joinder of

necessary parties. According to him, the daughters of Kullappa Asari @

Kulla Asari have not been impleaded and therefore,they also being

entitled to claim the share in the suit property, their non impleadment

would be fatal to the plaintiff's case. From the materials placed on

record, it is evident that Kullappa Asari @ Kulla Asari died leaving

behind three sons and two daughters. His two sons, namely, Arumugam

and Ayyasamy had died. The defendants are the legal heirs of the

deceased Ayyasami. The first plaintiff died during the pendency of the

suit. Now, according to the plaintiff, the daughters of Kullappa Asari @

Kulla Asari died even prior to his demise. That fact has also been

admitted by D.W.1 during the course of cross examination. As above

pointed out, Arumugam died without marriage. Even the defendants

have also admitted in the written statement that the daughters of

Kullappa Asari @ Kulla Asari, have not claimed any right over the suit

property. In the light of the abovesaid factors, when the defendants have

not come forward with the specific case as to who are the other legal

S.A..No.1134 of 2008

heirs entitled to claim share in the suit property and the extent and nature

of the right of such sharer, other than vaguely pleading that the suit is

bad for non joinder of necessary parties, when they themselves have

come forward with the case that the daughters of Kullappa Asari @ Kulla

Asari had not claimed any right over the suit property, in such

circumstances, as rightly contended by the plaintiff's counsel, the

plaintiff's suit cannot be thrown out on the footing that the same is bad

for non joinder of necessary parties. In this connection, the Apex Court

in the decision reported in AIR 1993 SCC 1587 (Laxmishankar

Harishankar Bhatt v. Yashram Vasta (dead) by L.Rs.) has explained the

position of law that when the defendant takes the plea for non joinder of

necessary parties, the defendant has to come out with the specific case as

to who are the other co-owners and what right they claim and without

such particulars, the suit cannot be dismissed for non joinder of

necessary parties. The position of law has been outlined by the Apex

Court in the abovesaid decision as follows:

Civil P.C.(1908), O.1, R.9 - Dismissal for non-joinder of

necessary parties - Suit for recovery of possession -

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Plaintiff-purchaser claiming to have acquired entire

ownership of suit property - Plea by defendant-tenant

that suit is liable to be dismissed for non-joinder of co-

owners - No averments, however, in written statement

as to who are other co-owners and what rights they

claim - Suit cannot be dismissed for non-joinder on

such vague plea.

.....

13. A careful reading of above clearly discloses that

there is no clear averment as to who are the co-owners

and what exactly is the nature of right claimed by them.

A vague statement of this character, in our considered

opinion, could hardly be sufficient to non-suit the

appellant on the ground of non-joinder of parties. We

are unable to comprehend as to how the trial court had

come to the conclusion that the executants of the sale

deed dated 12.2.1968 could not pass a full title when

itself points out that the shares of the other co-owners

S.A..No.1134 of 2008

were not known. May be the appellant took the stand

that it was not necessary to implead others but that does

not mean the appellant is liable to be non suited. The

stand of the appellant is consistent with his case that he

has come to acquire the entire ownership of the suit

property. Therefore, the courts should have insisted on

some material on record as to the existence of other co-

owners and their rights pertaining to suit properties. In

juxtaposition to revenue record, there must be some

worthwhile evidence for the court to conclude that there

are other co-owners. Genealogical tree filed along with

the written statement cannot point to the existence of

co-owners without specific evidence in this regard.

Such an evidence is totally lacking in this case.

Therefore, we find it equally impossible to accept the

finding of the High Court when it endorsed the view of

the trial court in this regard. Accordingly, we conclude

that in the absence of a specific finding as to whether

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there are other co-owners and how they are necessary

parties, the suit could not have been dismissed for non-

joinder of necessary parties. On this conclusion, we

think it is unnecessary to go into the legal aspect as to

whether in the absence of other co-owners, one co-

owner could maintain a suit."

I also had an occasion to follow the abovesaid decision in the judgment

rendered by me in S.A. Nos.240 & 241 of 2005 dated 27.08.2018.

Considering the abovesaid facts in toto, it is noted that the plea of non-

joinder of necessary parties raised by the defendants in the written

statement being a vague plea without any particulars and also the

defendants having failed to substantiate the said plea with materials

worth acceptance and on the other hand, they having themselves

admitted that the daughters of Kullappa Asari @ Kulla Asari have not

claimed any right over the suit property, all put together, the courts below

are found to be justified in holding that the plaintiff's suit is not bad for

non-joinder of necessary parties.

S.A..No.1134 of 2008

18. In the light of the abovesaid factors, it is evident that the

courts below have, on proper appreciation of the materials placed on

record, both orally and documentary, rightly held that the plaintiff is

entitled to claim the half share in the suit property and accordingly

proceeded to grant the preliminary decree in favour of the plaintiff. In

such view of the matter, I do not find any valid reason to interfere with

judgment and decree of the courts below. I therefore hold that no

substantial question of law is involved in the second appeal. Resultantly,

the second appeal is dismissed with costs. Consequently, connected

miscellaneous petition, if any, is closed.

19.01.2021 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga

To

1. The Principal Sub Court, Gobichettipalayam

2. The District Munsif Court, Sathyamangalam.

3. The Section Officer, VR Section, High Court, Madras

S.A..No.1134 of 2008

T. RAVINDRAN, J.

bga

S.A.No.1134 of 2008

19.01.2021