Madras High Court
D.Devaki vs R.Thanigaivelu on 1 July, 2021
A.S.Nos.322 & 323 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.Nos. 322 & 323 of 2015
A.S.No.322 of 2015
1. D.Devaki
2. K.Mohan
3. K.Purushothaman
4. K.Radha
5. K.Palani
6. K.Nithyanandam ... Appellants
Vs
1. R.Thanigaivelu
2. Rajeswari
3. Shanthi
4. T.Nagaraj
5. T.Srinivasan
6. Lakshmi
7. Pushpa
8. T.Kumar
9. Mallika
10. J.Ravikumar
11. J.Murthy
12. J.Manikandan
13. J.Devi
14. T.Ramesh ... Respondents
https://www.mhc.tn.gov.in/judis/
A.S.Nos.322 & 323 of 2015
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 05.03.2015 in I.A.No.124 of 2013 in
O.S.No.2583 of 2013 on the file of the XV Additional Judge, City Civil
Court, Chennai.
A.S.No.323 of 2015
1. D.Devaki
2. K.Mohan
3. K.Purushothaman
4. K.Radha
5. K.Palani
6. K.Nithyanandam ... Appellants
Vs
1. Mallika
2. J.Ravikumar
3. J.Murthy
4. J.Manikandan
5. J.Devi
6. Rajeswari
7. Shanthi
8. T.Nagaraj
9. T.Srinivasan
10. Lakshmi
11. Pushpa
12. T.Kumar
13. R.Thanigaivelu
14. T.Ramesh ... Respondents
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 05.03.2015 in I.A.No.134 of 2013 in
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A.S.Nos.322 & 323 of 2015
O.S.No.2583 of 2013 on the file of the XV Additional Judge, City Civil
Court, Chennai.
For Appellants : Mr.J.Sudhakaran (in both appeals)
For R1 to R12 : No appearance (in both appeals)
For R13 & R14 : Mr.V.Chandra Prabhu (in both appeals)
COMMON JUDGMENT
These Appeal suits are filed against the Judgment and Decree
dated 05.03.2015 in I.A.No.124 & 134 of 2013 in O.S.No.2583 of 2013 on
the file of the XV Additional Judge, City Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial Court.
3. In both appeal suits, the appellants are the plaintiffs and the
respondents are the defendants. The plaintiffs filed a suit for partition and
separate possession in respect of the suit properties and also for declaration
declaring that the settlement deed dated 14.12.2011 as null and void along
with the prayer of permanent injunction. Pending suit, the 8th defendant and
defendants 9 to 13 separately filed a petition for rejection of plaint and both
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A.S.Nos.322 & 323 of 2015
the petitions were allowed and plaint in O.S.No.2583 of 2013 was rejected.
Aggrieved by the same, the plaintiffs preferred the present appeal suits.
4. The defendants 8 to 13 filed a petition for rejection of plaint
on the ground that the plaint averments do not disclose any cause of action
for partition in respect of the suit property. The impugned suit itself is
nothing but clear abuse of process of law for the reason that “A” and “B”
schedule properties have been amicably partitioned by the father of the
plaintiffs with his brothers and each of them were put in possession of the
respective shares. When the properties were partitioned there cannot any
further partition in respect of the very same properties. In respect of “C”
schedule property, it was already divided and its shares were allotted by the
plaintiffs' father with his brothers. The plaintiffs have not valued the
properties properly and under valued the properties and paid court fees.
Therefore, prayed for rejection of plaint.
5. Resisting the same, the plaintiffs filed a counter stating that
during the life time of their father in the presence of well wishers and elders,
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A.S.Nos.322 & 323 of 2015
house and ground bearing Door Nos.87 and 93, Kamarajar Salai,
Kodungaiyur, Chennai, have been amicably partitioned and each of them
were put in possession of their respective shares. In respect of the property
situated at Old No.92, New No.154, Kamarajar Salai, Kodungaiyur, Chennai
was enjoyed in common by four brothers, each of them having 1/4th share.
It was also agreed among them that regular partition deed will be executed
in the course of time in respect of “A” and “B” schedule property. Since, it
was not executed, the plaintiffs have no other option to file the suit for
partition. In respect of “C” schedule property is concerned, the 8th
defendant was enjoyed the portion, which was allotted to their father and
executed settlement deed to his son i.e., 14th defendant in the suit. He has
no right or title over the property to settle the same in favour of his son.
Therefore, there are triable issues in the suit and it cannot be rejected in its
limine.
6. On hearing both sides, the Trial Court has allowed the
petitions and rejected the plaint in O.S.No.2583 of 2013. On perusal of the
impugned order, the Court below conducted rowing enquiry in depth in
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A.S.Nos.322 & 323 of 2015
respect of the merits of the suit and concluded that the plaintiffs are not
entitled for the relief sought for in the plaint without examination of any
witnesses. The Court below cannot go beyond the averments in the plaint,
while considering the rejection of plaint. Whereas, the Trial Court had gone
into the documents mentioned therein and decided the petition for rejection
of plaint without examination of any witnesses in respect of the issues
involved in the suit. The very case of the plaintiffs is that they decided to
partition and the same has not been materialised by non-cooperation of the
parties. Hence, the plaintiffs filed a suit for partition.
7. The prayer in the suit is not only for partition and also for
other reliefs. The relief sought for in the suit reads as follows :-
“A) for partition and separate possession of
plaintiffs 1/4th share in house and ground bearing old Door
No.92, New Door No.154, Kamarajar Salai, Kodungaiyur,
Chennai – 118 and more fully described in the C schedule
hereunder and also in respect of house and ground bearing
Door Nos. 87 and 93 Kamarajar Salai, Kodungaiyur, Chennai
– 118 and more fully described in the A and B schedule
hereunder.
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A.S.Nos.322 & 323 of 2015
B) for a declaration that settlement deed dated
14.12.2011 registered as Doc.No.6083/2011,
S.R.O.Madhavaram executed by 8th defendant in favour of 14th
defendant is ab initio null and void and unenforceable in law.
C) for permanent injunction restraining the
defendants from creating any encumbrance or putting up
construction in respect of 1/4th share of plaintiffs in C schedule
property”
The plaintiffs also prayed for declaration declaring that the settlement deed
executed by the 8th defendant in favour of his son as null and void.
Therefore, the plaintiffs called upon the defendants by their legal notice
dated 02.01.2013 to effect partition and for separate possession of their
1/4th share in respect of the suit properties. Hence, there are triable issues in
the suit and it cannot be rejected in its limine.
8. In view of the above, both the Appeal Suits are allowed and
the Judgment and Decree dated 05.03.2015 in I.A.Nos.124 & 134 of 2013 in
O.S.No.2583 of 2013 on the file of the XV Additional Judge, City Civil
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A.S.Nos.322 & 323 of 2015
Court, Chennai, are hereby set aside. The Trial Court is directed to dispose
of the suit within a period of six months from the date of receipt of a copy
of this order. No order as to costs.
01.07.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1. The XV Additional Judge,
City Civil Court, Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras
Note :
Registry is directed to send back
the records to the Court below.
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A.S.Nos.322 & 323 of 2015
G.K.ILANTHIRAIYAN,J.
lpp
A.S.Nos. 322 & 323 of 2015
01.07.2021
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