Madras High Court

Bagiyavathi vs Gokila on 21 January, 2021

                                                                                    SA.No.716 of 2017

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 21.01.2021

                                                  CORAM :

                          THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
                                               SA.No.716 of 2017

                 Bagiyavathi                                       ... Appellant/4th Defendant

                                                    Versus

                 1.Gokila
                 2.Thilagavathi                                    ... Respondents/plaintiffs
                 3.Nataraj
                 4.Indrani
                 5.Thiyagarajan                                    ... Respondents/Defendant
                                                                                     Nos.1 to 3

                            Second Appeal filed under Section 100 read with Order 42 Rule 1 &
                 2 of Civil Procedure Code, to allow the above Second Appeal and set aside the
                 Judgment and Decree dated 25.01.2012 passed by the Principal Subordinate
                 Judge, Coimbatore in A.S.No.52 of 2011, confirming the Decree and Judgment
                 in O.S.No.446 of 2005 on the file of the III Additional District Munsif,
                 Coimbatore dated 31.01.2011.
                            For Appellant     : Mr.Mukund for M/s. V.Sivakumar

                            For Respondents   : Mr.Saravanasowmiyan for R1 and R2
                                                Mr.J.Arokhia Raj for R3 and R4
                                                No appearance for R5

                                                    ****



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                                                                                   SA.No.716 of 2017

                                               JUDGMENT

This Second Appeal has been filed challenging the Judgment and

Decree dated 25.01.2012 passed by the Principal Subordinate Judge,

Coimbatore in A.S.No.52 of 2011, confirming the Decree and Judgment in

O.S.No.446 of 2005 on the file of the III Additional District Munsif, Coimbatore

dated 31.01.2011.

2.The fourth defendant in the suit is the appellant herein. In the

appeal, the appellant has suggested this Court to frame the substantial question

of Law and the same is extracted as under:

“i. Whether the findings of the trial court and the

first appellate court that the appellant has not preferred

any appeal against the decree and judgment in O.S.No.715

of 2000 dated 26.06.2002 on the file of the Principal

District Munsif, Coimbatore against the portion of the leave

granted to file a suit for partition and, therefore, the

appellant has to suffer is against law when the appellant's

predecessors' sale deeds in the year 1986, 1987 and 1998

are not at all disputed in the said decree and judgment in

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SA.No.716 of 2017

O.S.No.715 of 2000 dated 26.06.2002?

ii. Whether the clear mandate findings in

O.S.No.715 of 2000 that the sale deed dated 28.10.1986,

02.12.1987 and 21.08.1998 are valid and the plaintiffs in

the said suit have acquainted with the facts of the sale in

the year 1986 itself and thereby relief of declaration to

declare the above said sale deeds as null and void is

barred by law of limitation confers any prayer to the court

to grant the relief of partition? And whether it could be

granted as the same is barred by law?

iii. Whether the findings of the Courts below are

against doctrine of ouster?

iv. Whether the findings of the Courts below are

against the law or relinquishment?

v. Whether the findings of the Courts below are

against the law of adverse possession?

vi. Whether the findings of the Courts below are

erroneous as the litigant's right to defend the lit was

questioned under the decree?”

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SA.No.716 of 2017

3.The learned counsel for the appellant submitted that the suit was

filed by the plaintiff for the partition among two daughters i.e. plaintiff Nos.1

and 2 and the first defendant father. The first defendant without having any

right, sold the suit property to the second defendant. Thereafter the second

defendant sold the property to the third defendant. Thereafter the third

defendant sold the property to the fourth defendant.

4.The plaintiffs filed a suit before the Principal District Munsif Court

of Coimbatore in O.S.No.715 of 2000 against the defendants to declare the sale

deeds dated 28.10.1986, 02.12.1987 and 21.08.1998 as null and void and will

not bind the plaintiffs right over the suit property and seeking a permanent

injunction restraining the defendants from interfering with the plaintiffs peaceful

and enjoyment over the suit property. The said suit was dismissed on

26.06.2002, with a direction to the respondent Nos.1 and 2 to file a partition

suit. On the other hand, the appellant submitted that the suit is hit by the

Principal of Res judicata and the suit against the fourth defendant is to be

dismissed. The fourth defendant is well aware of the Judgment and Decree http://www.judis.nic.in

SA.No.716 of 2017

passed in O.S.No.715 of 2000 and she did not come forward for partition, thus

the plaintiffs have filed the suit for partition and separate possession. No appeal

had been preferred against the said Judgment and decree by the fourth

defendant. Therefore, the plaintiffs have filed a partition suit against the father,

who is the first defendant in the suit. All the purchasers have also been

impleaded as defendant Nos.2, 3 and 4.

5.The main contention of the learned counsel appearing for the

appellant is that though she has not preferred any appeal against the Judgment

and the decree, she is entitled for 2/3 share in the suit property by means of

adverse possession. The trial court has not considered this aspect. Therefore

the fourth defendant has filed the present appeal.

6.Heard, the learned counsel appearing for the appellant and the

learned counsel for the respondent Nos.1 to 4, who appeared by regarding

notice regarding admission and perused the materials available on record.

7.On perusal of the materials available and Judgment and Decree

passed by the courts below, it is seen that DW1 would clearly deposed as under:

@vdf;F k; thjpf Sf; F k; ,ilna m/t.vz; 715- 2000 khtl;l http://www.judis.nic.in

SA.No.716 of 2017

chpik a p a y ; e Pj p k d; wj;jpy; tHf;F ele;jJ/ m e;j tHf;fpy; eh d;

rhl;rpa k; brhy;y p a[ s; n s d ;.... m e;j tHf;fpy; Vw;gl;l jPh;g;g[

jPh;g;g hiz b a y ; y h k ; th';fptpl;nld;/ nkw;g o jPh;g;g[k;

jPh;g;g hiza pid vjph;j;J eh d; m g; g P y ; jhf;fy; bra;atp y;iy/@

8.On perusal of the above evidence of DW1, it shows that the

appellant herein had not challenged the Judgment and Decree passed in

O.S.No.715 of 2000 and the said suit was filed by the plaintiffs challenging the

sale made by the father and the second defendant and thereafter all the

subsequent sale proceedings. Under these circumstances, the trial court decreed

the present suit for partition in O.S.No.446 of 2005. Against which, the fourth

defendant/appellant herein had preferred an appeal in A.S.No.52 of 2011. It

would be opt to extract the relevant portion of the first appellate court in

paragraph No.12 as follows:

“12.Before filing of the partition suit respondent

1 and 2 issued a legal notice to the 3rd respondent and

appellant herein as per Ex.B2. The appellant received the

notice as per Ex.A3, the returned postal cover for the 3 rd

respondent marked as Ex,A4. The appellant herein sent a

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SA.No.716 of 2017

reply notice as per Ex.A5. Thereafter, first and 2nd

respondents filed the partition suit. Even though, the

learned Principal District Munsif, Coimbatore in

O.S.No.715/2000 observed that with regard to first and 2 nd

respondents undivided share over the suit property, the

sale deed Ex.B1 to B.3 as nullity, the appellant/4 th

respondent has not preferred any appeal. The appellant

also in her cross examination deposed as follows:

@vdf;F k; thjpf Sf; F k; ,ilna m/t.vz; 715- 2000 khtl;l

chpik a p a y ; e Pj p k d; wj;jpy; tHf;F ele;jJ/ m e;j tHf;fpy;

eh d; rhl;rpak; brhy;y p a[ s; n s d ;.... m e;j tHf;fpy; Vw;gl;l

jPh;g;g[ jPh;g;g hiz b a y ; y h k; th';fptpl;nld;/ nkw; g o

jPh;g;g[k; jPh;g;g hiza pid vjph;j;J eh d; m g; g P y ; jhf;fy;

                          bra;atp y;iy/@

                                      Hence,       the       decree      and      judgment       in

O.S.No.715/2000 establishes the 1st and 2nd Respondents

2/3rd share over the suit property become final and binding

upon the Appellant. Further, the 1st and 2nd respondents

herein filed the partition suit as per the findings of the

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SA.No.716 of 2017

Principal District Munsif, Coimbatore in O.S.No.715/2000.

Upon perusal of the pleadings, oral and documentary

evidence this court is of the opinion that the 1st and 2nd

respondents are entitled to 2/3rd share in the suit property

and entitled for obtaining preliminary decree. The trial

Court properly appreciated the oral and documentary

evidence and conclude that the 1st and 2nd respondents are

entitled to 2/3rd share in the suit property which is factually

and legally correct. The reasons stated by the appellant is

not satisfactory to interfere with the findings of the trial

court. Hence, this Court held that the appellant is not

entitled to any relief of appeal as prayed in the grounds of

appeal and answered this point accordingly.