Babuji Rao vs J.Baskar Rao
2021 Latest Caselaw 14122 Mad

                                                                              S.A.No.1113 of 2012

                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 15.07.2021

                                                     CORAM

                                   THE HON'BLE MR.JUSTICE C.SARAVANAN

                                              S.A.No.1113 of 2012

                                          (Through Video Conferencing)

                 1.Babuji Rao
                 2.Mrs.Rukmani                                              ... Appellants

                                                       Vs.

                 J.Baskar Rao                                               ... Respondent


                        Second Appeal filed under Section 100 of C.P.C., against the
                 Judgment and Decree dated 04.07.2012 made in A.S.No.32 of 2011 on
                 the file of Subordinate Judge, Arni in confirming the Judgment and
                 Decree dated 29.11.2011 made in O.S.No.226 of 2007 on the file of
                 District Munsif at Arni.

                                   For Appellants   : Mr.A.Gouthaman
                                   For Respondent   : Mr.P.Satheesh Kumar


                                                    JUDGMENT

The appellants have filed this appeal. They were the defendants in

O.S.No.226 of 2007 who are the appellants herein, remains unsuccessful

both before the Trial Court and before the First Appellate Court.

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2. The respondent/plaintiff herein had filed a suit in O.S.No.226 of

2007 before the District Munsif Court at Arni to declare that the

respondent was the owner of the schedule C suit property and to direct

the appellants/defendants to deliver the possession of the same to the

respondent/plaintiff through Court. The said suit was also filed for

directing the appellants/defendants to pay a sum of Rs.18,000/- for the

damages of the use and occupation of schedule C suit property and also

to pay a sum of Rs.500/- per month as monthly rent from the date of

filing of the suit till the date of delivery of the possession.

3. The case was filed on the strength of Exhibit A2 Settlement Deed

dated 14.02.2002 executed by J.Kamalaibai Ammal in favour of the

respondent/plaintiff (1st appellant/respondent's mother). The suit was

partly decreed by the Trial Court vide Judgment and Decree dated

29.07.2011 by holding that the respondent/plaintiff was the owner of the

schedule C suit property in view of Exhibit A2 Settlement Deed dated

14.02.2002. The Trial Court however dismissed the suit as far as the

other relief or payment of Rs.18,000/- towards damages for use and

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occupation of the aforesaid property and for payment of Rs.500/- per

month towards monthly rent of the aforesaid property.

4. The appellants therefore filed A.S.No.32 of 2011 vide Judgment

and Decree dated 29.07.2011 passed by the Trial Court in O.S.No.226 of

2007.

5. Aggrieved by the same, this appeal has been filed by the

appellants/defendants.

6. This appeal was not admitted when it was listed for admission.

As was the practice of this Court, this court had ordered notice of admission

on the respondent/plaintiff. After the notice was served on the

respondent/plaintiff, the respondent/plaintiff appeared through his

counsel.

7. In this appeal, the appellants/defendants has raised the following

questions of law as substantial questions of law:-

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“(i) Whether courts below right in holding that the defendant did not filed an application under section 10 of civil procedure code to stay the present suit because the earlier suit is partition pending between the parties ignoring the well settled position of law that legal points can be raised at any stage of the suit?

(ii) Whethe courts below right in decreeing the suit overlooking the position of law that the plaintiff is to prove his case instead of taking advantage of the defendant case, the plaintiff never proved by way of oral or documentary evidence that the properties were purchased by the respondent mother from her independent source of income?

(iii) Whether courts below right in decreeing the suit after knowing that the earlier suit is for partition between the parties even pending today and the plaint schedule property also shown as 1st item of property in that partition suit, ignoring the position that the present court became functious officio, when it had knowledge of the earlier suit for partition?

(iv) Whether the courts below right in ignoring the facts from the oral evidence of the respective parties that till the death of the parents of the appellant the properties were treated as joint family property and the appellant was in possession and enjoyment of the property as a joint family member overlooking this aspect of evidence, whether court below right in coming to an conclusion that the property is separate property of the appellant's mother?

(v) Whether the courts below right in decreeing the present suit ignoring the position of law, the partition suit

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between the brother is a major suit, where the nature of property and right of the parties in the suit property can be decided overlooking this aspect court below are not erroneous giving finding that the properties are self acquired property of the respondent's mother?”

8. The defence of the appellants/defendants before the Trial Court

was that the appellants/defendants had already filed a suit in O.S.No.240

of 2001 before the Subordinate Judge's Court, Aarni which was

re-numbered as O.S.No.104 of 2004. The said suit is still pending in

view of the Judgment and decree passed in O.S.No.226 of 2007 and

dismissal of the appeal filed by the appellants/defendants in A.S.No.32 of

2011 vide impugned Judgment and decree dated 04.07.2012.

9. The case of the appellants/defendants before the Trial Court in

O.S.No.226 of 2007 was that the suit schedule property was purchased in

the year 1959 in the name of the J.Kamalabai Ammal (The mother of

respondent/plaintiff and 1st appellant/1st defendant). It is the specific case

of the appellants/defendants in O.S.No.226 of 2007 and as also in

O.S.No.240 of 2001 which was re-numbered as O.S.No.104 of 2004 was

that the 1st appellant/1st defendant and respondent/plaintiff mother had no

independent income of her own and therefore the suit schedule property

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was a joint family property and therefore the appellants/defendants was

entitled to a share along with the respondent/plaintiff herein.

10. Pending O.S.No.104 of 2004 for partition of the suit schedule

property, the respondent/plaintiff herein sold the suit schedule property to

one N.Sankar sale deed dated 05.11.2003. The said N.Sankar is not a

party to the proceedings in the present appeal and the connected suit.

The subsequent buyer namely N.Sankar is a party to the proceedings in

O.S.No.104 of 2004 filed by the 1st appellant/1st defendant. The

respondent/plaintiff sold another part of Schedule B suit property having

entrance facing big street to one Mrs.Chandrika by a registered sale deed

dated 30.12.2005.

11. The learned counsel for the appellants/defendants submits that

though the appellants/defendants had taken a categorical stand that prior

suit in O.S.No.104 of 2004 (formerly in O.S.No.240 of 2001) was

pending, the Trial Court ought to have proceeded with the trial in

subsequent suit in O.S.No.226 of 2007 which now give rise to the

impugned Judgment and decree of the Trial Court and the Appellate

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Court. He further submits that Section 10 of Civil Procedure Code puts

an embargo on the Trial Court from proceedings with the Trial where

issues are substantially same between the same parties and therefore the

Trial Court committed an error in decreeing the suit in O.S.No.226 of

2007. He submits that the Appellate Court compounded by dismissing

the appeal filed by the appellants/defendants in A.S.No.32 of 2011 vide

its Judgment and decree dated 04.07.2012.

12. Defending the Judgment and decree passed by the Trial Court

and the Appellate Court, the learned counsel for the respondent submits

that the appellants/defendants had filed I.A.No.174 of 2013 in

O.S.No.104 of 2004 to stay the proceedings due to the pendency of the

present appeal and therefore submits that there is no error in the

impugned Judgment and decree of the Appellate Court by affirming the

Judgment and decree of the Trial Court in O.S.No.226 of 2007.

13. I have considered the arguments advanced by the learned

counsel for the appellants and the respondent.

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14. The facts are not in dispute in this case. The 1st appellant/1st

defendant and the respondent are the sons of one Jeevaji Rao and

J.Kamalaibai Ammal. The suit schedule property was purchased in the

year 1959 in the name of their mother J.Kamalabai Ammal vide Ex.A1.

The appellants/defendants are in possession of the suit schedule property.

15. The case of the respondent/plaintiff before the Trial Court was

that the appellants/defendants are permissive user. Since the dispute

arose between the parties, the appellants/defendants herein filed

O.S.No.240 of 2001 before the Subordinate Judge's Court at Arani to

partition the suit schedule property. The said suit was subsequently

re-numbered as O.S.No.104 of 2004.

16. During the pendency of the suit for partition in O.S.No.104 of

2004, the respondent/plaintiff herein sold the property to one N.Sankar

sale deed dated 05.11.2003 and the respondent/plaintiff also sold one

portion of schedule B suit property to one Mrs.Chandrika by a sale deed

dated 30.12.2005 and thereafter filed O.S.No.226 of 2007 to declare title

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over the suit schedule property and to direct the appellants/defendants to

vacate the same.

17. It is noticed that both O.S.No.226 of 2007 and O.S.No.104 of

2004 (formerly in O.S.No.240 of 2001) were pending before the same

Court namely the District Munsif Court, Arani. The suit filed by the

respondent/plaintiff in O.S.No.226 of 2007 being subsequent suit in

respect of the same property ought to have been suo motu stayed by the

Trial Court under Section 10 of C.P.C.

18. In fact, the Trial Court should have ordered a combined trial in

both proceedings to give a quietus to the dispute between the

appellants/defendants and the respondent/plaintiff. Instead, the Trial

Court has allowed the creation of 3rd party rights as is evident from the

fact that the respondent/plaintiff has executed the sale deeds dated

05.11.2003 and 30.12.2005 in favour of one N.Sankar and one

Mrs.Chandrika.

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19. In the light of the above, this Court is of the view that the

impugned Judgment of the Trial Court and that of the Appellate Court are

liable to be set aside and O.S.No.226 of 2007 filed by the

respondent/plaintiff is restored on the files of the District Munsif Court at

Arani. The District Munsif Court, Arani is directed to take up

O.S.No.104 of 2004 and O.S.No.226 of 2007 and dispose the same in

accordance with law.

20. Since the dispute is pending from 2001, the Trial Court shall

endeavour to dispose both the suits as expeditiously as possible by

observing the proper covid protocols.

21. This Second Appeal stands allowed with the above

observations. No costs.

15.07.2021

Internet : Yes / No Index : Yes/No Speaking Order/Non-speaking Order

arb

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To:

1.The learned Subordinate Judge's Court, Arni.

2.The District Munsif Court, Arni.

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C.SARAVANAN, J.

arb

S.A.No.1113 of 2012

15.07.2021

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