Madras High Court
Sonai vs Pandian on 19 July, 2021
S.A.(MD)No.228 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.228 of 2013
and
M.P.(MD)No.1 of 2013
and
C.M.P.(MD)No.3389 of 2021
1.Sonai
2.Jeya
3.Mari
4.Nagammal
5.Shanthi
6.Pappathi Ammal ... Appellants / Respondents / Plaintiffs 1 to 6
-Vs-
1.Pandian
2.Manikandan
3.Karuppiah @ Muthalali
4.Velu (Died)
5.Chinnammal
6.Varadharajan
7.Manoharan
8.Rakku
https://www.mhc.tn.gov.in/judis/
1/12
S.A.(MD)No.228 of 2013
9.Murugesan
10.Palaniammal
11.Selvaraju
12.Manikandan
(Respondents 8 to 12 are brought on record
as Lrs of the deceased fourth respondent
vide Court order dated 16.10.2020)
... Respondents / Appellants / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 02.01.2013 made in A.S.No.
145 of 2010 on the file of the Subordinate Court, Sivagangai by reversing
the judgment and decree dated 30.10.2010 passed in O.S.No.36 of 2007 on
the file of the Additional District Munsif cum Judicial Magistrate,
Manamadurai.
For Appellant : Mr.A.Sivaji
For R1, R2, R3, R5
& R8 to R12 : Mr.C.Rajagopal
For R6 & R7 : No appearance
For R4 : Died
JUDGMENT
The plaintiffs in O.S.No.36 of 2007 on the file of the Additional
District Munsif Court, Manamadurai are the appellants in this second
appeal.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
2. The plaintiffs sought the relief of declaration and permanent
injunction in respect of the suit property. The suit property is comprised in
Survey No.172 in Poovanthi Village covered under old patta No.662 and
new patta No.1087 and measured a total extent of 5 acres and 2.02.50
hectares. According to the plaintiffs, the suit property originally belonged
to one Periyampillai. The said Periyampillai had two wives namely
Veerayiammal and Alagammal. Karuppiah, Irulandi and Rakkappan were
born to Periyampillai through first wife Veerayiammal. Through second
wife Alagammal, Muthiah, Ponnuchamy and Ramasamy were born. The
plaintiffs herein belong to Ponnuchamy and Ramasamy branch. The
plaintiffs admitted that the children born to the second wife Alagammal
filed O.S.No.80 of 1950 on the file of the Sub Court, Madurai seeking the
relief of partition against Veerayiammal branch. The suit ended in
compromise and a compromise decree was passed in I.A.No.1022 of 1951
on 28.07.1951- Ex.A1.
3. The specific contention of the plaintiffs is that the suit property
was allotted to Muthiah, Ponnuchamy and Ramasamy. The revenue records
were also changed in their names. They were enjoying the same in
common. Later, all the three namely Muthiah, Ponnuchamy and
Ramasamy passed away. The 6th and 7th defendants are the sons of Muthiah.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
The plaintiffs 1 to 3 are the son and daughters of Ponnuchamy. The fourth
plaintiff is the wife of Ponnuchamy. The fifth plaintiff is Ramasamy's
daughter. The sixth plaintiff is Ramasamy's wife. The stand of the
plaintiffs is that the suit property is being enjoyed by them and that the
defendants have no right whatsoever over the same.
4. The grievance of the plaintiffs is that the defendants 1 to 5 who
belonged to Veerayiammal branch were falsely claiming that the suit
property belongs to them. Therefore, the plaintiffs caused to issue notice
dated 28.12.2006. The defendants 1 to 5 sent a reply dated 18.01.2007
containing the false averments. Since their title was challenged, the
plaintiffs were constrained to file O.S.No.36 of 2007 before the Additional
District Munsif Court, Manamadurai, seeking the relief of declaration and
permanent injunction.
5. The contesting defendants 1 to 5 filed their written statement
controverting the plaint averments. Based on the rival pleadings, the
learned trial Munsif framed the necessary issues. The first plaintiff Sonai
examined himself as P.W.1 and one Mayakrishnan. was examined as P.W.2.
Ex.A1 to Ex.A9 were marked. The first defendant Pandian examined
himself as D.W.1. The two other witnesses were also examined on the side
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
of the defendants. Ex.B1 to Ex.B5 were marked. After consideration of the
evidence on record, the learned trial Judge, vide judgment and decree dated
30.10.2010, decreed the suit as prayed for. Aggrieved by the same, the
contesting defendants 1 to 5 filed A.S.No.145 of 2010 before the Sub Court,
Sivagangai. By judgment and decree dated 02.01.2013, the judgment and
decree passed by the trial Court was reversed and the appeal was allowed
and the suit was dismissed. Challenging the same, this second appeal has
been filed.
6.The second appeal was admitted on the following substantial
questions of law:-
“1. Has not the lower Appellate Court committed error in law in
allowing the appeal on the ground of non-joinder of parties without
properly considering the question as to whether the said alleged parties
are necessary and proper parties in view of the specific pleadings made
in this case? and
2. Has not the lower Appellate Court committed error in law in
placing reliance upon additional document dated 01.09.1965 at the
appellate stage, that too without following the procedure provided
therefor under Order 41 Rule 27 to 29 of Civil Procedure Code?”
7. The learned counsel appearing for the appellants submitted that the
appellate Court had allowed the appeal filed by the contesting defendants
primarily on three grounds:-
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
(i) non joinder of parties
(ii) non availability of the suit property on ground and
(iii) admitting the additional evidence Ex.B6 without following the
procedure set out in Order 41 Rule 27 to 29 of C.P.C.,
8. He submitted that the relief sought for in the suit is only
declaration and permanent injunction. The plaintiff has the choice of
choosing his adversaries. The plaintiffs are seeking relief only against the
contesting defendants herein and not against others. In any event, the suit
cannot be dismissed on the ground of non joinder of necessary parties. The
plaintiffs have not sought any relief of partition. Therefore, he seriously
faulted the approach of the Court below. He also would submit that it is not
the case of the defendants that the suit property is not available on ground.
The learned counsel took me through the pleadings in the written statement.
The defendants have not disputed the identity of the suit property
comprised in Survey No.172. The first appellate Court had referred only to
Survey No.169 and there is no whisper about Survey No.172. He also
submitted that the additional evidence introduced by the defendants could
not have been actually received in evidence without following the
prescribed procedure.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
9. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree passed by the first
appellate Court does not call for any interference.
10. I carefully considered the rival contentions and went through the
evidence on record. I must sustain the first contention urged by the learned
counsel appearing for the appellants. The first appellate Court could not
have non suited the plaintiff on the ground of non-joinder of parties.
The plaintiff is entitled to choose his adversaries. If it is a case of partition,
then, certainly, without impleading the necessary and proper parties, the suit
cannot be maintained. But the case on hand is not one for partition. It is
one for declaration and permanent injunction. According to the plaintiffs,
the contesting defendants 1 to 5 have been challenging their title and
attempting to interfere with their possession. Therefore, it is open to the
plaintiffs to confine their relief as against the defendants 1 to 5 alone.
Hence, I answer the first substantial question of law in favour of the
appellants.
11. The core argument of the learned counsel appearing for the
respondents is that between Veerayiammal branch and Algammal branch,
partition had taken place way back in the year 1950. Alagammal branch
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
filed O.S.No.80 of 1950 on the file of the Sub Court, Madurai. The suit
ended in compromise. The compromise decree was passed on 28.07.1951.
It was also marked as Ex.A1. There is no dispute that the suit property
corresponds to 6th item in “A” schedule.
12. The learned counsel appearing for the respondents has
convincingly demonstrated that under Ex.A1, the three sons of Alagammal
namely Muthiah, Ponnuchamy and Ramasamy were allotted 9 acres and 42
cents. Among them, a registered partition took place in the year 1956. The
same was marked as Ex.B2. Though survey No.172 has not been
specifically mentioned therein, the learned counsel for the respondents took
me through the description of property and demonstrated that each of the
three sons took 3.14 acres each. It is true that survey No.172 is not
specifically mentioned therein. But then, after a careful reading of the
boundary description given in Ex.B2-registered partition deed, I come to
the conclusion that what was allotted to the share of the three sons of
Alagammal were divided into three equal shares namely 3.14 acre each.
It is also demonstrated convincingly that while Muthiah branch retained
what was allotted to them, Ponnuchamy and Ramasamy substantially
alienated what was allotted to them under Ex.B2 partition deed. Ex.B3,
Ex.B4 and Ex.B5-sale deeds were marked before the trial Court. The
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
purchasers are hailing from Veerayiammal branch. Of-course, the first
appellate Court had admitted Ex.B6 as a additional evidence without
following the procedure set out in Order 41 Rule 28 of C.P.C. I wanted to
know from the learned counsel appearing for the respondents as to how the
said additional evidence-Ex.B6 came to be marked by the first appellate
Court.
13. The learned counsel pointed out that before the first appellate
Court, the contesting defendants filed I.A.No.87 of 2012 for receiving
Ex.B6-sale deed executed by Ponnuchamy as additional evidence. In the
said IA., no counter was filed by the plaintiffs therein. I.A was allowed on
29.02.2012 and that is how, Ex.B6 came to be marked. Of-course, marking
the document is one and admitting the same is another. The first appellate
Court ought to have followed the procedure set out in Order 41 Rule 28 of
C.P.C., thereafter. The first appellate Court has not done so. However, on
this technical ground, I am not inclined to interfere. The contesting
defendants have already marked Ex.B3, Ex.B4 and Ex.B5. All the three
sale deeds were executed by Ponnuchamy and Ramasamy independently.
Ex.B6 should be seen as a continuation of the three other documents.
Though Ponnuchamy and Ramasamy had executed such sale deeds, their
descendants once again claimed what was allotted to their branch under
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
Ex.A1-compromise decree. The moment Ponnuchamy and Ramasamy sold
what was allotted to them, they ceased to have any right, title or interest
therein.
14. I am satisfied that the suit schedule is very much covered by those
four sale deeds namely Ex.B3 to Ex.B6. Even though the first appellate
Court had given erroneous reasons, still before this Court, the counsel for
the respondents has demonstrated that the judgment and decree passed by
the first appellate Court do not call for any interference. Even though I
answer the substantial question of law in favour of the appellants, interest
of justice requires that no interference is made. The second appeal is
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
19.07.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
To
1.The Subordinate Court, Sivagangai.
2.The Additional District Munsif cum Judicial Magistrate, Manamadurai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.228 of 2013
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.228 of 2013
and
M.P.(MD)No.1 of 2013
and
C.M.P.(MD)No.3389 of 2021
19.07.2021
https://www.mhc.tn.gov.in/judis/
