Madras High Court
Rukmani vs Kuppusamy on 22 January, 2021
C.M.A.No.3335 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3335 of 2014
M.P.No.1 of 2014
Rukmani .. Petitioner
vs.
1.Kuppusamy
2.Suganthi .. Respondents
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
C.P.C, against the Order and Decree dated 26.06.2014 made in A.S.No.4 of
2013 on the file of the II Additional District Judge, Tindivanam remand
back to the judgment and decree dated 12.04.2012 in O.S.No.18 of 2007 on
the file of the Sub-ordinate Judge, Tindivanam.
For Petitioner : Mr.D.Ravichander
For Respondent : Mr.N.P.Jayakumar for RR1 to 2
ORDER
The Judgment and decree dated 26.06.2014 passed in A.S.No.4 of
2013 is under challenge in the present Civil Miscellaneous Appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
2. The plaintiff is the appellant and the suit was instituted for partition.
The trial Court adjudicated the issues and decreed the suit in favour of the
plaintiff. The defendants filed the appeal suit in A.S.No.4 of 2013. The first
Appellate Court considered the issues and remanded the matter back for re-
trial, on account of the fact that there are many ambiguities in the judgment
passed by the trial Court. Therefore, it is relevant to consider the findings of
the first appellate court and the reasons stated for remanding the matter back
to the trial Court. The first appellate Court appreciated certain facts with
reference to the suit properties and made a findings as under:
15.Item No.14 is standing in the name of strangers
Rathina Udiayar and his wife Malliga. Ex.B10 would reveal
this fact. Plaintiff has not given the new R.S.No. So as to find
the truth. He has not stated as to how it went to the hands of
strangers.
16.Item No.5 to 8 stand in the name of Raji, Saroja,
Rathina Udayar, Sowbagyam Ammal. Patta Ex.B11 and A
Register B12 would reveal that. All the items have been
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
consolidate in one R.S.No. About which plaintiff has not
furnished any details. This fact and her admission in evidence
would reveal that she had no connection with her father's
family for many years.
17.Remaining items are 1,9 and 12. Item No.1 stands in
the name of first defendant and three others. Whether the
R.S.No. Correlates with the new R.S. No. And extent are
correct, has to be verified. About them No.9 it is shown as
vacant site. But plaintiff has admitted that house has been
constructed by her brother the first defendant. No discussion
has been made about the construction and rights over its.
Further new R.S. No. To be verified and revenue records to be
verified, regarding which plaintiff has to adduce evidence.
Item No.12, though stated to be sold, no document produced.
Encumbrance certificate/Ex.B17 and 18 does not reveal
anything about item 12. Hence, roving investigation has to be
done for this item also.
At the risk of repetition item war particulars as discussed
above are given below in brief.
1.Item 3, 10 and 11 were sold by their father to strangers
long back, and they are enjoying for more than the statutory
period.
2.Item 2 was sold at the time of filing of suit and before
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
service of summons to first defendant. The bona fide
purchaser to be impleaded as party.
3.Item No.4 is standing in the name of strangers Rathina
Udaiyar and his wife Malliga who are strangers. How it went
to their hands to be verified.
4.Item No.5 to 8 stand in the name of Raji, Saroja, Rathina
Udaiyar, Sowbagyam Ammal. Similarly, Item No.1 stands in
the name of many joint owners. First defendant is also the
joint patta owner. The extent and R.S.No. To be verified.
5.Item No.9 and 12 seems to be in the name of family
members. It is to be verified from revenue records correlating
with new R.S.Nos.
Though item No.9 shown as vacant site, a house has been
constructed by the first defendant at his expenses.
18.Plaintiff has to adduce evidence to clarify all the
above details regarding all the items.
19.First defendant has to adduce evidence regarding the
three documents filed by him before the appellate court. Both
of them have to be given opportunity to cross-examine the
other party.
20. The evidence available is not sufficient to enable
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
this Court to pronounce judgment. Lower Court has simply
stated that except the properties sold by the father, the
plaintiff is entitled to 1/6 share in the remaining properties.
Learned Sub Judge has not stated in the conclusive para
consolidating the items sold by the father. We have to read the
entire judgment and collect materials for the decree which
cannot be correct. Lower Court has allotted share in the
properties which stand in the name of strangers without
assigning any reason. Hence, case is remanded back to the
trial Court with the direction to re-admit the suit under its
original number in the register of civil suits and proceed to
determine the suit. Evidence recorded during the trial shall
subject to all just exceptions be evidence during trial after
remand. Further evidence shall be adduced by both the sides
as stated above. Plaintiff has to adduce evidence regarding
new R.S.No. By filing revenue records and correlate with the
old .S.No. A Register of all the items to be filed if not available
on record and to prove as to whether all the properties stand
in the name of any of the family members. First defendant has
to adduce evidence regarding the three sale deeds filed by him
before the appellate court. Opportunities have to be given to
both sides to adduce evidence regarding the above facts
without repetition of evidence. The trial Court has to decide
after recording all the evidence independent of the views
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
expressed by the appellate Court.
3. On perusal of the above portion of the judgment, it reveals that many
defects were identified by the first appellate court. Undoubtedly, under
Section 107 of C.P.C, the First Appellate Court can decide the issues
finally. If additional documents are to be filed and an evidence is to be
taken, the first Appellate Court can do the same and pass final orders on
merits. But, if the defects are challenged, it is very difficult for the First
Appellate Court to deal with the entire issues and then, it is preferable to
remand the matter back. Under Order XLI Rule 23 and Rule 23(A) of C.P.C,
empowers the First Appellate Court to remand the matter back.
Undoubtedly, if the issues are decided on merits and in accordance with
law, then the First Appellate Court should always decide the matter on
merits, if necessary, by accepting additional documents or examining the
witnesses. But, in the present case, lot of defects were noticed by the first
Appellate Court. Therefore, it is very difficult to conduct re-trial entirely by
the First Appellate Court. With reference to several items of the suit
property, the doubts have been identified by the First Appellate Court.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
When there are many items stated in the plaint and there are many doubts
with reference to the evidence available, then it is preferable to remand the
matter back to the trial Court for re-trial. This being the factum , the first
Appellate Court has rightly considered the issues and remanded the matter
back to the trial Court for re-trial. Accordingly, the judgment and decree
dated 26.06.2014 passed in A.S.No.4 of 2013 stands confirmed and
consequently, Civil Miscellaneous Appeal stands dismissed. No costs.
Connected miscellaneous petition is also closed.
4. However, the trial Court is directed to dispose of the suit as
expeditiously as possible and preferably within a period of 10 months from
the date of receipt of a copy of this order. The parties to the suit are directed
to co-operate for earlier disposal of the suit
5. The parties to the appeal are restrained from seeking unnecessary
adjournments. Adjournments are to be granted only on genuine grounds
and by recording reasons. Adjournments on flimsy grounds are to be
rejected in limine by all Courts. The parties cannot be given privilege of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
getting adjournments for their benefit in order to prolong and protract the
issues.
22.01.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1.The II Additional District Judge, Tindivanam
2. The Sub-ordinate Judge, Tindivanam
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3335 of 2014
S.M.SUBRAMANIAM, J.
ssb
C.M.A.No.3335 of 2014
22.01.2021
https://www.mhc.tn.gov.in/judis/
