Madras High Court
Gangadharan Nair vs Prasannakumari on 21 April, 2022
1 S.A.(MD)No.856 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.856 of 2010
1. Gangadharan Nair
2. Krishna Kumar
3. Suresh ... Appellants / Respondents 1 to 3/
Defendants 1 to 3
Vs.
1. Prasannakumari
2. Prabala Chandran
3. Prathip Kumar ... Respondents / Appellants 2 to 4 /
NIL
4. Sukumaran Nair ... Respondents / 4th Respondent /
4th Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.137
of 2003 dated 18.03.2010 on the file of the District Judge,
Kanyakumari at Nagercoil, reversing the Judgment and
Decree passed in O.S.No.17 of 1999 dated 24.06.2003 on the
file of the Sub Judge, Padmanabhapuram.
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2 S.A.(MD)No.856 OF 2010
For Appellants : Mr.K.N.Thampi
For R-1 to R-3 : Mr.V.M.Balamohan Thampi
For R-4 : No appearance.
***
JUDGMENT
Defendants 1 to 3 in O.S.No.17 of 1999 on the file of
the Sub Court, Padmanabhapuram, are the appellants in this
second appeal.
2. One Krishnan Thampi filed the said suit seeking
the relief of partition. The appellants filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the trial Court framed necessary issues. The
plaintiff examined himself as P.W.1. Ex.A.1 to Ex.A.44 were
marked. On the side of the defendants, two witnesses were
examined. Ex.B.1 to Ex.B.13 were marked. After considering
the evidence on record, the trial Court by judgment and
decree dated 24.06.2003 dismissed the suit. Aggrieved by the
same, the plaintiff filed A.S.No.137 of 2003 before the District
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Judge, Kanyakumari District at Nagercoil. During the
pendency of the appeal, the plaintiff passed away and his legal
heirs came on record. After hearing both sides, the first
appellate Court by the impugned judgment and decree dated
18.03.2010 reversed the decision of the trial Court and the
suit was decreed as prayed for. The fourth defendant was also
held entitled to decree of partition of his two cents in the
plaint schedule property. Challenging the same, defendants 1
to 3 filed this second appeal.
3. This second appeal was admitted on 19.04.2022 on
the following substantial question of law:-
“ Whether the suit for partition as framed is
maintainable? ”
4. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
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5. Per contra, the learned counsel appearing for
respondents 1 to 3 submitted that the impugned judgment and
decree do not call for any interference.
6. I carefully considered the rival contentions and
went through the evidence on record.
7. The suit schedule property measures 32 cents
comprised in Survey No.343/6 in Thumbacode Village. The
corresponding old survey number is 1378. According to the
plaintiff, one Narayana Pillai was entitled to 1/3rd share in the
suit property. That was settled in favour of his minor son
Sudhakaran Nair. The plaintiff purchased the said 1/3rd share
from the said Sudhakaran Nair. The said deed was marked as
Ex.A.16. In the plaint, quite a few transactions have been
catalogued indicating as to how the plaintiff became entitled
to 20.666 cents under various documents.
8. After hearing the learned counsel on either side at
length, I posed a specific question. It is obvious that the suit
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for partition will lie only if it can be shown that the plaintiff
and the defendants enjoy the suit property in common and
their title can be traced to a common source. Unfortunately in
the plaint, the common source has not at all been indicated. Of
course it is asserted that the suit property is covered in the
partition deed Ex.A.1 dated 28.01.1080 (Malabar Era).
9. The learned counsel appearing for the appellants
strongly asserted that the suit property is not covered under
Ex.A.1. The learned counsel appearing for the legal heirs of
the plaintiff demonstrated that the suit property is covered
under Ex.A.1. He stated that in Ex.A.1, yf;fk; 116 alone has
been mentioned. I am not able to find out from the evidence as
to how yf;fk; 116 has been correlated to the suit property.
Therefore, on these twin grounds, I hold that the suit for
partition as framed was not maintainable. The substantial
question of law is answered in favour of the appellants. The
impugned judgment and decree are set aside. That does not
mean that the decision of the trial Court will stand restored.
The trial Court had given a finding that defendants 1 to 3 had
perfected their possession over the suit property by adverse
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possession. Since I have held that the suit itself has not been
properly framed and that the relief of partition could not have
been sought for on twin grounds, the finding of adverse
possession against the plaintiff will have to be automatically
vacated. In other words, the slate is wiped clean. This second
appeal is allowed. Whatever rights the plaintiff and
respondents 1 to 3 have, it is always open to them to work
them out as per law. No costs.
21.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The District Judge,
Kanyakumari at Nagercoil.
2. The Sub Judge,
Padmanabhapuram.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.856 of 2010
21.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
