Karuppaiah vs Singaram ... 1St
2021 Latest Caselaw 13877 Mad

                                                                               S.A.(MD)No.116 of 2008

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 13.07.2021

                                                         CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.(MD)No.116 of 2008


                   Karuppaiah                          ... Appellant /Respondent / Plaintiff

                                                         -Vs-


                   1.Singaram                      ... 1st Respondent / Appellant / 1st Defendant
                   2.Chinnathambi              ... 2nd Respondent / 2nd Respondent / 2nd Defendant


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree passed in A.S.No.32 of 2007 dated
                   24.09.2007 on the file of the Sub Court, Ramanathapuram reversing the
                   judgment and decree passed in O.S.No.84 of 2004, dated 23.02.2007 on the
                   file of the District Munsif cum Judicial Magistrate, Thiruvadanai.


                                         For Appellant          : Mr.R.Sundar Srinivasan
                                          For R1                : Mr.M.P.Senthil
                                         For R2                 : No appearance
                                                       JUDGMENT

The plaintiff in O.S.No.84 of 2004 on the file of the District Munsif

Court, Thiruvadanai is the appellant. The plaintiff filed the said suit

seeking the relief of partition. The trial Court granted preliminary decree in https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.116 of 2008

favour of the plaintiff. Challenging the same, the first defendant filed

A.S.No.32 of 2007 before the Sub Court, Ramanathapuram. The appeal

was allowed and the suit was dismissed. Challenging the same, the second

appeal came to be filed.

2.The second appeal was admitted on the following substantial

questions of law:-

“(i) Whether the judgment and decree of the first appellate

Court is perverse on account of non-consideration of the material

evidence adduced on the side of the appellant? and

(ii) Whether the findings of the first appellate Court with

respect to the assignment made by the Government is one deemed to

be the acquisition made by the joint family property is erroneous?”

3.The learned counsel appearing for the appellant submitted that the

suit property was originally assigned in favour of his father Balan. The

father had passed away way back in the year 1990. The first defendant was

in occupation of the suit property. There is no dispute that the appellant

died intestate. Though the appellant left behind four sons and three

daughters, specific reasons have been set out in the plaint as to why they

have not been impleaded. The contest was only between the appellant on https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.116 of 2008

the one hand and the first defendant on the other. The second defendant

Chinnathambi had in fact sailed along with the appellant.

4.The learned counsel appearing for the appellant submitted that the

trial Court rightly decreed the suit and the first Appellate Court without any

justification reversed the same. He called upon this Court to answer the

substantial questions of law in favour of the appellant and restore the

decision of the trial Court.

5. Per contra, the learned counsel appearing for the first respondent

submitted that the impugned judgment and decree does not call for any

interference.

6.I carefully considered the rival contentions and went through the

evidence on record. It is true that the appellant herein had earlier filed

O.S.No.45 of 2000 before the District Munsif Court, Thiruvadanai seeking

the very same relief of partition. But the said suit was allowed to be

dismissed for default.

7.As rightly pointed out by the learned counsel appearing for the

appellant, the dismissal of the earlier suit for partition for default will not

preclude the plaintiff from filing a fresh suit for partition. He placed https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.116 of 2008

reliance on the decision reported in 2012 (3) CTC 178 (Sulochana Vs.

Thilakavathi) in support of this proposition.

8.Though this contention urged by the learned counsel for the

appellant is well founded, the Court below had not non-suited him on that

ground. Primarily, the ground on which, the first Appellate Court dismissed

the suit was that the plaintiff had failed to implead the other legal heirs of

Balan. It is admitted that apart from the parties herein, Balan had one other

son and three other daughters. Obviously, all of them do have an interest in

the property. The plaintiff has of-course pleaded that though they given up

their interest in the suit property, but Courts cannot go by such self-serving

pleadings. Nothing prevented the plaintiff from impleading the other legal

heirs.

9.If they had remained exparte, then, the pleadings of the plaintiff

would have been unrebutted and an appropriate decree could have been

passed on that basis. Therefore, the first Appellate Court was fully justified

in non suiting the plaintiff for having failed to implead the other legal heirs.

The first Appellate Court also took into account the stand taken by the

plaintiff in O.S.No.45 of 2000. The plaint in the earlier suit was marked as

Ex.B7. In the first plaint, the plaintiff had stated that the property of Balan https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.116 of 2008

had not been partitioned. But in the present case, the plaintiff took the

stand that except the suit item, all the other items were partitioned. This

contradictory stand taken by the plaintiff had also been swayed the mind of

the Court below.

10. Be that as it may, the judgment and decree passed by the first

Appellate Court can be sustained on the ground of non-joinder of necessary

parties. In this view of the matter, the substantial questions of law are

answered against the appellant. The second appeal is dismissed. The

judgment and decree passed by the first Appellate Court is confirmed.

However, the appellant is given liberty to file a fresh suit seeking the relief

of partition. I make it clear that all the contentions of the plaintiff are left

open. If any such fresh suit is filed within a period of three months from

the date of receipt of a copy of this judgment, the same will be dealt with

without reference to limitation or the stand earlier taken by the plaintiff. In

other words, the plaintiff will be entitled to adjudication on merits.

11. With this observation and liberty, the second appeal is dismissed.

No costs.

13.07.2021

Internet : Yes/No Index : Yes/No rmi https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.116 of 2008

G.R.SWAMINATHAN.J.,

rmi

To

1.The Sub Court, Ramanathapuram.

2.The District Munsif cum Judicial Magistrate, Thiruvadanai.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.116 of 2008

13.07.2021

https://www.mhc.tn.gov.in/judis/