Madras High Court
Yunus (Died) vs Lylathul Kathir (Died) on 23 September, 2021
S.A.No.205 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.205 of 2003
Yunus (Died) ... Appellant / Appellant / Defendant
1.Y.Rahmath
2.Y.Asan Kuthoos
3.Y.Syed Ibrahim
4.Y.Kathijiammal
5.Y.Nagoor Meeran Mohideen
6.Y.Naina Meeran Mohideen ... Appellants
-Vs-
Lylathul Kathir (Died) ... Respondent / Respondent / Plaintiff
1.A.Ajmir Haza Mohideen
2.A.Abdul Rasooldheen ... Respondents
(Appellants 1 to 6 are brought on record as Lrs of the deceased
sole appellant and Respondents 1 & 2 are brought on record as
Lrs of the deceased sole respondent vide Court order dated
22.11.2016 made in M.P.(MD)No.1 of 2005 and C.M.P.(MD)
No.10283 to 10285 of 2016 )
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S.A.No.205 of 2003
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in A.S.No.13 of 2004, dated
22.03.2004 on the file of the Principal District Judge, Ramanathapuram,
partly confirming the decree and judgment in O.S.No.44 of 1999, dated
25.07.2003 on the file of the Sub Court, Ramanathapuram.
For Appellants : Mr.M.M.Kannan
For Respondents : Mr.A.Hariharan
JUDGMENT
This second appeal arises out of a partition suit in O.S.No.44 of 1999
on the file of the Sub Court, Ramanathapuram. One Lylathul Kathir filed
the said suit seeking partition and separate possession. Preliminary decree
was passed in her favour. Aggrieved by the same, the defendant filed
A.S.No.13 of 2004. Vide judgment and decree dated 22.03.2004, the first
appellate court partly allowed the appeal and modified the judgment and
decree passed by the trial court and held that the plaintiff was entitled to get
a preliminary decree for partition to the extent of 3/4th share excluding the
property found in Ex.B4. Not satisfied with what he got in the first appeal,
the defendant has further filed this second appeal.
2. When the second appeal was taken up for final disposal, it was
brought to the notice of this court that the impugned judgment and decree
passed by the first appellate court was based entirely on the exparte
judgment rendered in A.S.No.34 of 1997 dated 28.11.1997.
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S.A.No.205 of 2003
3. The learned counsel appearing for the appellants would point out
that subsequently, it was set aside. A.S.No.34 of 1997 was given a fresh
disposal on 12.10.1999. The learned counsel appearing for the appellants
pointed out that while disposing of A.S.No.13 of 2004, it was not brought to
the notice of the first appellate court about the subsequent judgment dated
12.10.1999 made in A.S.No.34 of 1997. Therefore, C.M.P(MD)No.7678 of
2021 has been filed for marking the judgment and decree dated 12.10.1999
made in A.S.No.34 of 1997. There cannot be any objection for marking the
said judgment. Therefore, C.M.P.(MD)No.7678 of 2021 is allowed and the
judgment and decree dated 12.10.1999 made in A.S.No.34 of 1997 are
marked as Ex.B9 and Ex.B10.
4. In view of Ex.B9 and Ex.B10, the very foundation, on which, the
impugned judgment stands is undermined. In this view of the matter, the
impugned judgments and decrees are set aside. The matter is remanded to
the file of the Principal District Judge, Ramanathapuram. The parties
herein shall appear either in person or through counsel on 20.10.2021. the
first appellate court is requested to dispose of the first appeal on merits and
in accordance with law within a period of two moths thereafter. Registry to
despatch the original records to the first appellate court forthwith and
without any delay.
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S.A.No.205 of 2003
G.R.SWAMINATHAN.J.,
rmi
5. The second appeal is allowed. No costs.
23.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Principal District Judge, Ramanathapuram.
2.The Sub Court, Ramanathapuram.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.No.205 of 2003
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