N.Sowmeendranathan vs N.Vijayendran
2021 Latest Caselaw 20495 Mad

                                                                            S.A.(MD)No.606 of 2012

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 06.10.2021

                                                       CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.606 of 2012


                   1.N.Sowmeendranathan

                   2.M.Gopi                   ... Appellants / Respondents / Defendants 3 & 5


                                                       -Vs-


                   1.N.Vijayendran            ... Respondent / 1st Respondent / Plaintiff
                   2.N.Sadasivan
                   3.A.Shylaja           ... Respondents / Respondents 3 & 4 / Defendants 2 & 4


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
                   against the judgment and decree passed in A.S.No.16 of 2006, dated 29.02.2012
                   on the file of the Sub Court (Camp Court), I/C, Kuzhithurai confirming the
                   judgment and decree passed in O.S.No.521 of 1996, dated 01.12.2005 on the file
                   of the II Additional District Munsif, Kuzhithurai.


                                       For Appellants         : Mr.K.Sree Kumaran Nair
                                       For R1 & R2            : Ms.J.Anandhavalli
                                       For R3                 : no appearance




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                                                                                   S.A.(MD)No.606 of 2012



                                                          JUDGMENT

The third and fifth defendants in O.S.No.521 of 1996 on the file of

the second Additional District Munsif, Kuzhithurai are the appellants in this

second appeal. The second appeal was admitted on the following substantial

questions of law:-

“1.Whether the courts below are right in not considering the

admission made by the 1st defendant in Ex.B18 written statement in O.S.No.

148 of 1994?

2. Whether the courts below are right in granting a preliminary decree

for partition of 8.450 cents in favour of the plaintiff and 8.5 cents in favour

of 2nd defendant ignoring the title of defendants 3 and 5 as claimed in

Exs.B27, B29, B30, B32 and B34?”

2. The first respondent herein namely N.Vijayendran filed the said

suit for partition. There is no dispute that the suit property measures an

extent of 18 ¾ cents. It jointly belonged to one Narayana Panicker and his

wife Kamalakshi was the first defendant in the suit. Narayana Panicker and

Kamalakshi had three sons namely plaintiff Vijayendran and second

defendant Sadasivan and third defendant Sowmeendranathan and one

daughter by name Vijaya Lakshmi. Narayana Panicker and Kamalakshi

jointly sold 7 cents of land under Ex.B3 dated 21.01.1970 in favour of the https://www.mhc.tn.gov.in/judis

S.A.(MD)No.606 of 2012

second defendant Sadasivan. Later, Narayana Panicker sold 4 ½ cents

under Ex.B5 dated 28.01.1974 in favour of his wife Kamalakshi.

Kamalakshi vide Ex.A4 dated 14.11.1983 sold 4 ½ cents in favour of Vijaya

Lakshmi. Vijaya Lakshmi sold 4 ½ cents of land to the plaintiff

Vijayendran under Ex.A1 dated 20.4.1994. Based on Ex.A1, Vijayendran

filed O.S.No.521 of 1996 for partition. During the pendency of the suit,

Kamalakshi sold 3.950 cents in favour of the plaintiff under Ex.A3 dated

09.11.1999. Therefore, the plaintiff amended the plaint also and sought the

relief of partition of 8.450 cents of land. The plaintiff examined himself as

P.W.1 and Ex.A1 to Ex.A11 were marked. The first appellant herein

examined himself as D.W.2. Sadasivan examined himself as D.W.1. On the

side of the defendants, Ex.B1 to Ex.B40 were marked. After a

consideration of the evidence on record, the trial court by judgment and

decree dated 01.12.2005 granted preliminary decree as prayed for.

Aggrieved by the same, the appellants herein filed A.S.No.16 of 2006

before the Sub Court, Kuzhithurai. The first appellate court by judgment

and decree dated 29.02.2012 dismissed the appeal and confirmed the

decision of the trial court.

3. After hearing the learned counsel on either side, I am clearly of the

view that no substantial questions of law really arises for consideration. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.606 of 2012

The courts below after tracing the title of the plaintiff over 8.450 cents of

land in the suit property granted him preliminary decree. The defendants 3

and 5 though claimed title under Exs.B27, B29, B30, B32 & B34 could not

establish the same. Only if the executant has a valid and marketable title,

he can convey the same by executing a sale deed. If the executant is bereft

of any right or title, execution of sale deed will not by itself convey

anything. The courts below after a detailed consideration of the entire

evidence on record accepted the case of the plaintiff. The factual narration

set out above is sufficient to come to the conclusion that no interference is

called for. The substantial questions of law are answered against the

appellants. There is no merit in the second appeal. The second appeal

stands dismissed. No costs.

06.10.2021

Internet : Yes/No Index : Yes/No rmi

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S.A.(MD)No.606 of 2012

To

1.The Sub Court (Camp Court), I/C, Kuzhithurai .

2.The II Additional District Munsif, Kuzhithurai.

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

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S.A.(MD)No.606 of 2012

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.606 of 2012

06.10.2021

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