Madras High Court
Ganapathi Achari vs Radhakrishnan on 4 July, 2022
S.A.No.92 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2022
CORAM :
THE HONOURABLE MS. JUSTICE P.T.ASHA
S.A.No.92 of 2020
and
C.M.P. No.1902 of 2020
1. Ganapathi Achari
2. Muthammal ...Appellants
Vs.
1. Radhakrishnan
2. Priya
3. Ragul Gandhi
4. Annamary ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
judgment and decree of the Sub-court, Ulundurpet, passed in A.S. No.3
of 2017 dated 28.11.2017, confirming the Judgment and Decree of the
Principal District Munsif, Ulundurpet, passed in O.S. No.346 of 2010
dated 10.03.2014.
For Appellants : Mr. R. Rajarajan
For Respondents : Ms. Meenal
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S.A.No.92 of 2020
JUDGMENT
The defendants, who have concurrently lost before both the
courts below have filed the above Second Appeal.
2. The Second Appeal was admitted on the following
substantial questions of law:
a) "Whether the Courts below are right in holding that the alleged
oral partition between Duraisamy Achari (original owner) and
his brother Palani Achari and the alleged oral partition between
the heirs of Duraisamy and Palani without any oral or material
evidence are true, when especially the 4th plaintiff who claims to
have purchased from selective persons as it was allotted in the
oral partition to her vendors?
b) Whether the Courts below are right in holding that the non-
examination of the 4th plaintiff who claims the suit property in her
favour under Ex.A1 sale deed, is not fatal to the case of the
plaintiffs and the courts need not have drawn adverse inference
while holding the validity of Ex.A1 sale deed?
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S.A.No.92 of 2020
c) Whether the court below are right in holding that the alleged
three different oral partitions between Duraisamy and Palani,
between the heirs of Palani and between the heirs of Duraisamy
are valid even though there is no any single material evidence to
prove the same on the side of the plaintiff when especially the 4 th
plaintiff avoided the witness box and conveniently did not
disclose the earlier suit?"
3. The facts, which are necessary for disposing of the above
Second Appeal are herein below stated and for the ease of convenience,
the parties are being referred in the same ranking as before the Trial
Court.
4. Plaintiffs' case:
4.1. The plaintiffs filed the Original Suit in O.S. No.346 of
2010 on the file of the Principal District Munsif, Ulundurpet, to declare
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S.A.No.92 of 2020
their title to the suit scheduled properties and for an injunction
restraining the defendants from interfering with their peaceful possession
and enjoyment of the properties.
4.2. It is the case of the plaintiffs that the suit properties
originally belonged to one Marimuthu and thereafter, the properties were
purchased by one Duraisamy Achari under the sale deed dated
03.11.1947. The said Duraisamy and his brother Palani Achari, had
partitioned the said property along with other properties under oral
partition and had been in possession and enjoyment of their respective
shares. It was the case of the plaintiffs that the respective sharers had
started enjoying the properties by cultivating the same. After their death,
the properties were being enjoyed by their legal representatives.
Duraisamy Achari had two sons, by name, Kannan and Ramasamy.
Palanai Achari had three sons, by name, Subramaniyam, Chandrasekaran
and Kaluvarayadurai. After the death of Duraisamy and Palani Achari,
their children had orally partitioned the properties among themselves as
per the custom. Meanwhile, Duraisamy's son Kannan passed away
leaving behind his children Ramasamy, Subramaniam and
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S.A.No.92 of 2020
Chandrasekaran. The three of them had sold their properties to one
Annamary (the fourth plaintiff) for a sale consideration of Rs.2,060/-
under a sale deed dated 12.09.1987. After the death of the 4 th plaintiff's
husband, the family fell into dire straits and therefore, in the year 1993,
they had to leave for Bangalore to eke out their livelihood. Since the
plaintiffs 1 to 3 were minors, the plaintiffs stayed over at Bangalore. It is
the case of the plaintiffs that, however, they have been visiting the village
regularly. During one such visit, on 28.10.2010, when the plaintiffs were
cleaning their property, the defendants 1 and 2 came over and created a
ruckus stating that the property belongs to them. Therefore, the plaintiffs
have come forward with the above suit.
5. Defendants' case.
The defendants 1 and 2 have filed a written statement inter
alia denying the allegations contained in the plaint putting the plaintiffs
to a strict proof of its contents. It was their case that neither Duraisamy
nor Palani Achari had lived as a joint family. It is their case that
Duraisamy's ancestral village is Rishivandiyam Village. 70 years ago, he
had left the village for eking out his livelihood. He had originally settled
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S.A.No.92 of 2020
in Pokaiyur Village, where he purchased several properties. These
properties were sold and with the sale proceeds, he had come over to the
present village, where the suit property situate. It is, at this juncture,
Duraisamy had purchased the suit properties from out of his self
earnings. In the year 1973, Duraisamy died intestate leaving behind his
three sons, namely, Kannappan, Ganapathi Achari (1st defendant) and
Ramasamy. Out of the three sons, Kannappan and Ramasamy left the
family long ago and it is only the first defendant, who has been enjoying
the suit properties ever since then. It is the further case of the defendants
that earlier, the plaintiffs had filed a suit in O.S. No.93/95 for the very
same relief, which was dismissed for default on 30.08.1995. The
plaintiffs had filed an application in I.A. No.15/96 for restoring the suit.
However, this was also dismissed by an order dated 05.02.1997 as the
plaintiffs had failed to pay the cost which was imposed for restoring the
suit filed. These factors have been totally suppressed by the plaintiffs and
therefore, the suit deserves to be dismissed.
6. Judgement and decree of the Trial Court and the First
Appellate Court.
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S.A.No.92 of 2020
6.1. The learned Principal District Munsif, Ulundurpet, had
framed the following issues:
1. Whether the plaintiffs are the absolute owner of the suit
property?
2. Whether the plaintiffs are entitled to get declaration as prayed
for?
3. Whether the plaintiffs are entitled to get injunction as prayed
for?
4. Whether the suit is barred by Resjudicata?
6.2. The plaintiffs had examined Radha Krishnan as P.W.1 and
marked Ex.A1 to Ex.A7. On the side of the defendants, the 2 nd defendant
examined herself as D.W.1 and the 1st defendant had examined himself as
D.W.2. Ex.B1 to Ex.B6 were marked.
6.3. The learned District Munsif held that the plaintiffs have
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S.A.No.92 of 2020
proved that they are the absolute owners of the suit properties and
entitled to get a declaration. The defence raised by the defendants about
the earlier suit and it was being dismissed for default, the learned District
Munsif held that the judgement in the earlier suit was not a judgment on
merits and therefore be ignored.
6.4. Challenging the same, the defendants had filed A.S. No.3
of 2017 on the file of the Subordinate Court, Ulundurpet. The learned
Subordinate Judge also confirmed the judgment and decree of the trial
court by dismissing the appeal.
7. Challenging this concurrent judgment and decree the
defendants/appellants are before this Court.
8. Mr.R. Rajarajan, appearing on behalf of the
appellants/defendants would submit that the appeal gives rise to two
major issues, 1) whether the plaintiffs had proved the oral partition
between the children of Duraisamy, 2) the earlier suit in O.S. No.93/95
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S.A.No.92 of 2020
was for the very same relief between the same parties and since the same
was dismissed for default and the application for restoring the same was
also dismissed, the present suit is clearly barred by the provisions of
Order 9 Rule 9 of the Code of Civil Procedure. The learned counsel
would draw the attention of this Court to the cause of action raised in the
present suit as well as the earlier suit, which on a reading, shows that it
more or less overlaps. The learned counsel would also take the Court to
the decree in the earlier suit in O.S. No.93/95, which is marked as Ex.B5
and also the petition and orders passed in the Interlocutory Application
filed to restore the suit to file. A perusal of the two would show that on
30.08.1995, the plaintiffs had allowed the earlier suit filed for the same
cause of action dismissed for default. Thereafter, a petition under Section
5 of the Limitation Act was filed to condone the delay of 94 days in filing
the application to restore the suit to file. This application was allowed by
an order dated 10.01.1997 by the Principal District Munsif, Ulundurpet,
on condition that the plaintiffs pay a sum of Rs.300/- as cost to the
defendants on or before 17.01.1997. On two occasions, i.e. on
18.01.1997 and 30.01.1997 time for making the payment was extended
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S.A.No.92 of 2020
and on 05.02.1997 since the cost was not paid, the application was
dismissed. There is no revision filed against the said order and the same
had become final. Therefore, he would submit that the present suit is
clearly barred by the provisions of Order 9 Rule 9 CPC. He would
further submit that the plaintiffs have not let in evidence, whatsoever, to
prove their possession over the suit properties and more particularly when
the earlier suit for similar relief has been dismissed and one such relief is
for an injunction. He would also argue that the 4th plaintiff, who claims to
be the purchaser under Ex.A1 sale deed, has not appeared before the
Court. Therefore, an adverse inference has to be drawn against the same.
9. Per contra, Ms. Meenal, learned counsel appearing on behalf
of the plaintiffs would contend that the plaintiffs have proved their
possession and ownership over the suit properties through Ex.A1 to
Ex.A7, whereas the defendants have not been able to let in an iota of
evidence to show that they had been in possession of the suit properties.
She would further submit that the Provisions of Order 9 Rule 9 CPC
would not be a bar to the subsequent suit since the cause of action in
respect of the earlier suit and the cause of action in respect of the second
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S.A.No.92 of 2020
suit is different. She would further submit that the defendants in their
cross examination admitted the sale deed in favour of the plaintiffs in the
year 1987. She would also draw the attention to paragraph No.15 of the
appellate court's judgment to buttress her arguments. The dismissal of the
earlier suit in O.S. No.93/95 does not bar the instant suit.
10. Heard the counsels and perused the records.
11. The plaintiffs have come to the Court with a case that the
property in question has been purchased by them on 12.09.1987 from the
sons of Kannan, namely, Ramasamy, Subramaniam and Chandrasekaran
under a sale deed for a sale consideration of Rs.2,060/- and that they
have been in possession and enjoyment of the property. The defence, on
the other hand, is that the oral partition of the properties have not been
proved and that the properties belong only to Duraisamy and after him,
his sons, Kannappan, Ganapathy Achari (1st defendant) and Ramasamy
were in enjoyment of the properties. However, Kannappan had left with
his family from the suit village even during the life time of their father
Duraisamy. Ramasamy, on the other hand, had left the village and
therefore, it is the 1st defendant who has been in possession and
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S.A.No.92 of 2020
enjoyment of the properties. A plea that the suit is hit by the provisions
of Order 9 Rule 9 CPC has also been taken. On a perusal of Ex.B5, it
appears that the plaintiffs have filed an earlier suit in O.S. No.93/95 on
the file of the District Munsif, Ulundurpet, for the very same relief as
sought for in this suit. The cause of action was the purchase in the year
1987 and the subsequent interference which has been set out by the
appellate court in paragraph No.15 of its judgment. According to the
above, the cause of action arose on 12.09.1987, 31.05.1988, 04.06.1988
and 08.06.1988. In the instant case, the cause of action pleaded is the
sale deed dated 12.09.1987 and the disturbance to their possession is on
28.10.2010. The plaintiffs do not make a mention about the earlier suit.
This assumes significance since the earlier suit has been filed within a
year of purchase of the properties by the plaintiffs contending that their
possession is being threatened. The suit was originally numbered as
453/88 on the file of the District Munsif, Thirukoviloor and thereafter, it
has been transferred to the District Munsif, Ulundurpet and renumbered
as O.S. No.93/95. A perusal of the provisions of Order 9 Rule 9 CPC
would read as follows:
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S.A.No.92 of 2020
9. Decree against plaintiff by default bars fresh suit.
(1) Where a suit is wholly or partly dismissed under rule 8,
the plaintiff shall be precluded from bringing a fresh suit
in respect of the same cause of action. But he may apply for
an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the
Court shall make an order setting aside the dismissal upon
such terms as to costs or otherwise as it thinks fit. and shall
appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of
the application has been served on the opposite party.
12. A perusal of these provisions and the contents of the two
suits namely, O.S. No.93/95 and the instant suit, would clearly show that
the suit is laid for the very same relief and against the very same
defendants. Therefore, the present suit is clearly barred by the provisions
of Order 9 Rule 9 CPC. The substantial question of law in this regard,
has not been raised at the time of admission though both the counsels
have advanced their arguments extensively on the same. Therefore an
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additional substantial question of law is being framed, namely, "Whether
the courts below are correct in ignoring the defence under Order 9
Rule 9 CPC on the ground that the cause of action pleaded in the two
suits are different?".
13. The second suit does not refer to the earlier suit. There is a
suppression on the side of the plaintiffs. In the subsequent suit, which is
the subject matter of the appeal, the cause of action has been very cleverly
worded. The plaintiffs have not been able to prove the oral partition
between Duraisamy Achari and his brother Palani Achari and the
subsequent oral partition. Once the partition has not been established, the
right of the plaintiffs under Ex.A1 sale deed does not cloth the plaintiffs
with any right. The plaintiffs have deliberately kept away the 4 th plaintiff
from the witness box apparently with the fear that she may not withstand
the cross examination. The argument of the defendants that non
examination of the 4th plaintiff by the plaintiffs is fatal to the case is to
some extent true since the 4th plaintiff, as the guardian of the minor
plaintiffs, had purchased the properties and it is she who is conversant
with the facts of the sale. However, the plaintiffs have kept her away
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S.A.No.92 of 2020
from the witness box. Therefore, the question of law B is answered in
favour of the defendants.
14. Coming to the issue of possession, the plaintiffs have stated
that from 1993 onwards, they have been permanently living in
Bangalore. In the plaint, the following statement has been made.
“ 4k; thjpapd; fzth; Md Fg;g[ ,Urd; ,we;J nghfnt FLk;gj;jpy;
Vw;gl;l bghUshjhu f&;lk; fhuzkhf fle;j 1993k; Mz;L
gpiHg;gpw;fhf bg';fs{h; brd;W thjpfs; 1 Kjy; 4 tiuapyhdth;fs; &
efhpy; fl;ol ntiy bra;J m';nfna j';fp tpl;lhh;fs;/ fhuzk; 4k;
thjpapd; FHe;ijfs; Md 1 Kjy; 3 thjpfs; rpd;d”;rpwpa ikdh;fs;
vd;gjhYk;. bghUshjhu !;jpuj;jd;ik mw;w epiyapy; bg';fs{hpy;
epue;jukhf j';fp tpl;ldh; “
Therefore, they have been away from the suit properties from the year
1993. The patta that has been produced on the side of the plaintiff i.e.
Ex.P.5 would belie the case of the plaintiffs that there was a partition
between Duraisamy and his brother Palani Achari and thereafter amongst
the sons of Duraisamy, since the patta is a joint patta, which clearly
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shows that there has been no partition. That apart, the kist receipts are
available only for the year 2001, 2005, 2006 and 2007, despite the fact
the plaintiffs have pleaded that they are in possession from the date of
sale, namely 1987. Therefore, the judgment and decree of the courts
below in decreeing the suit on the ground of upholding the oral partition
and rejecting the plea of bar under Order 9 Rule 9 CPC is not sustainable.
The substantial questions of law raised have been answered in favour of
the defendants.
15. In the result,
i. the appeal is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
ii. The judgment and decree of the Subordinate Judge,
Ulundurpet, passed in A.S. No.3 of 2017 dated
28.11.2017, confirming the Judgment and Decree of
the Principal District Munsif, Ulundurpet, passed in
O.S. No.346 of 2010 dated 10.03.2014, are set aside.
iii. The suit filed by the respondents/plaintiffs in
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S.A.No.92 of 2020
O.S.No.346 of 2010 is dismissed.
04.07.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Ulundurpet.
2. The Principal District Munsif, Ulundurpet.
3. The Section Officer, V.R. Section, High Court, Madras
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S.A.No.92 of 2020
P.T.ASHA, J.
bga
S.A.No.92 of 2020
and
C.M.P. No.1902 of 2020
04.07.2022
https://www.mhc.tn.gov.in/judis
