Madras High Court
Priya vs Rajkumar on 9 July, 2021
A.S.No.513 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.513 of 2016
and C.M.P.No.12039 of 2016
Priya ...Appellant
Vs.
1. Rajkumar
2. Nandhavel ...Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
Judgment and Decree dated 24.02.2016 passed by the learned IV
Additional District Judge, Coimbatore in I.A.No.326 of 2015 in
O.S.No.365 of 2014, rejecting the plaint as not maintainable and allow
the above first appeal.
For Appellant : Mr.V.Nicolas
For Respondents : Mr.T.Balaji
For Mr.A.Thiyagarajan
JUDGMENT
The Appeal Suit is filed as against the Judgment and Decree
dated 24.02.2016 passed by the learned IV Additional District Judge,
Coimbatore in I.A.No.326 of 2015 in O.S.No.365 of 2014, thereby
allowing the petition for rejection of plaint.
2. The appellant is the plaintiff and the respondents are the
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A.S.No.513 of 2016
defendants 5 & 6. The appellant filed suit in O.S.No.365 of 2014 for
partition in respect of the suit property. While pending the suit, the
respondents filed a petition in I.A.No.326 of 2015 for rejection of plaint.
The trial Court allowed the petition and rejected the plaint as not
maintainable. Aggrieved by the same, the appellant has filed this present
Appeal Suit.
3. The learned counsel appearing for the appellant/plaintiff
submitted that one Marappa Gounder has got three sons viz.,
Thangamuthu Gounder, Velusamy Gounder and Mylsamy Gounder. The
said Marappa Gounder was cultivating the suit land as lessee and he
himself divided the leasehold land into three portions equally and gave to
his three sons to cultivate. After the demise of the said Marappa Gounder,
his three sons continued to cultivate the land. In the year 1996, one of the
sons Thangamuthu Gounder died, leaving behind his wife Ponnammal
and two sons viz., Rajendaran and Selvaraj as his legal heirs. The
appellant is the daughter of the said Rajendran, who is the first defendant
in this present suit.
3.1. While being so, other sons viz., Velusamy Gounder and
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A.S.No.513 of 2016
Mylsamy Gounder expressed their intention to purchase the suit land and
hence the said Ponnammal viz., grandmother of the appellant herein,
gave a sum of Rs.4,000/- to purchase the said land. But the document
was registered in the name of Velusamy Gounder and Mylsamy Gounder
in the year 1967. Thereafter, in the year 1982, the said Rajendaran,
Selvaraj and Ponnammal, who are the defendants 1, 3 & 4 herein, filed
suit for partition as against the said Velusamy Gounder and Mylsamy
Gounder in O.S.No.1544 of 1982 before the II Additional District Munsif
Court, Coimbatore and the same was decreed by allotting 1/3 share in the
suit land.
3.2. Aggrieved by the same, the said Velusamy Gounder
preferred an appeal in A.S.No.128 of 1990 before the II Additional
Subordinate Court, Coimbatore and the same was allowed. As against the
said judgment, the defendants 1, 3 & 4 herein filed Second Appeal before
this Court in S.A.No.8 of 1993 and the same dismissed by confirming the
judgment passed by the first appellate Court. In the above proceedings,
the defendants colluded with each other and the defendants 1, 3 & 4 did
not get into the witness box and have not produced any revenue
documents. Hence in all the proceedings, the defendants 1, 3 & 4 have
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A.S.No.513 of 2016
not conducted the case properly. Since, the appellant is not a party to the
above said proceedings, she filed the present suit for partition. Without
considering the above facts, the trial Court allowed the petition filed by
the respondents and rejected the plaint. Therefore, she prayed to set aside
the impugned order by allowing this appeal suit.
4. The learned counsel appearing for the respondents/
defendants 5 & 6 submitted that the defendants 1,3 & 4 herein had
already filed suit for partition in O.S.No.1544 of 1982 against the other
family members, on the file of the II Additional District Munsif,
Coimbatore, and the same was decreed. Aggrieved by the same, an
appeal suit was filed in A.S.No.128 of 1990 and the same was allowed.
As against the said judgment, Second Appeal was filed before this Court
in S.A.No.8 of 1993 by the defendants 1, 3 & 4, and the same was
dismissed by holding that the 4th defendant viz., Ponnammal had not
proved the passing of consideration of Rs.4,000/- from her for purchase
of the suit property. Therefore, the suit filed by the appellant's
predecessor was negatived by two appellate forums. Even then, the
appellant or her family members did not challenge the same and as such
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A.S.No.513 of 2016
the judgment and decree passed by this Court had attained finality. Now,
after passing of several years, the appellant filed this present suit that too
without any cause of action. Therefore the suit itself is not maintainable
and the trial Court rightly rejected the plaint. Hence, he prayed for
dismissal of this appeal suit.
5. Heard Mr.V.Nicholas, learned counsel appearing for the
appellant and Mr.T.Balaji, learned counsel appearing for the respondents.
6. It is seen from the records that this Court had already held in
the earlier suit that the suit property is that of Velusamy Gounder and
Mylsamy Gounder and as such the appellant's predecessors failed to
establish that the suit property is a joint family property. The only plea
raised by the appellant is that she is the daughter of the first defendant
and grand daughter of the late Thangamuthu Gounder and she is not a
party to the earlier proceedings and as such the judgment and decree
passed in the earlier suit shall not bind upon her. She cannot take that
stand as she is not a party to the earlier suit.
7. While dismissing the second appeal in S.A.No.8 of 1993,
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A.S.No.513 of 2016
this Court had categorically held that the plaintiffs, who are the
defendants 1, 3 & 4 herein, failed to prove the original leasehold right by
Marappa Gounder and direct cultivation by his three sons viz.,
Thangamuthu Gounder, Velusamy Gounder and Mylsamy Gounder and
alleged contribution of Rs.4,000/- by the fourth defendant viz.,
Ponnammal to purchase the suit property. Therefore, the appellant cannot
raise the same issue in the present impugned suit. It is directly hit by the
principles of res judicata and there is no cause of action to file the
present suit. Therefore, the Court below rightly allowed the petition and
rejected the plaint in O.S.No.365 of 2014. This Court finds no illegality
or infirmity in the order passed by the Court below.
8. In the result, the Appeal Suit stands dismissed.
Consequently, connected miscellaneous petition is closed. There shall be
no order as to costs.
09.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
rts
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A.S.No.513 of 2016
To
1. The IV Additional District Judge,
Coimbatore
https://www.mhc.tn.gov.in/judis/
A.S.No.513 of 2016
G.K.ILANTHIRAIYAN, J.
rts
A.S.No.513 of 2016 and
C.M.P.No.12039 of 2016
09.07.2021
https://www.mhc.tn.gov.in/judis/
