Madras High Court
Thirumalaichamy (Died) ... 1St ... vs Murugasamy ... Plaintiff / 1St on 1 March, 2022
S.A.(MD)No.545 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.545 of 2010
1.Thirumalaichamy (died) ... 1st Defendant / Appellant / Appellant
2.Magudeshwari ... Appellant
nd
(2 appellant brought on record as LRs of the deceased sole
appellant vide court order daed 14.03.2014
made in M.P.(MD)No.2 of 2014)
-Vs-
1.Murugasamy ... Plaintiff / 1st Respondent / 1st Respondent
2.Murugasamy Gounder ... 2nd Defendant / 2nd Respondent / 2nd Respondent
3.Palanichamy Gounder ... 3rd Defendant / 3rd Respondent / 3rd Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.93 of 2008, dated
09.02.2010 passed by the Suboridnate Judge, Palani confirming the
judgment and decree passed in O.S.No.1421 of 2004, dated 24.10.2008 by
the District Munsif, Palani.
For Appellant : Mr.T.Tamilmani
For R1 : Mr.N.Anand Chandrasekaran
for M/s.Sarvabhauman Associates
https://www.mhc.tn.gov.in/judis
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S.A.(MD)No.545 of 2010
JUDGMENT
This second appeal arises out of a suit for partition. There is no
dispute that the three suit items originally belonged to one Palaniammal.
Palaniammal passed away in the year 2000. She was blessed with three
children. One of them pre-deceased her. The plaintiff Murugasamy and
the first defendant Thirumalaichamy were the surviving legal heirs. The
husband of Palaniammal had also pre-deceased her. According to
Murugasamy/plaintiff, while the suit items 2 and 3 remain intact, a portion
of the first item had already been alienated in favour of Ramasamy Gounder
way back in the year 1972. Ramasamy Gounder had passed away and the
alienated portion had devolved on his son Murugasamy Gounder who was
impleaded as the second defendant. Murugasamy Gounder had sold a
portion of his portion thereof in favour of the third defendant. According to
the plaintiff, while he is having 50% share in suit items 2 and 3, he is
having 1/6th share in the suit 1st item. The second and third defendants
remained exparte. The first defendant / brother of the plaintiff filed written
statement controverting the plaint averments. He took a number of
defences. He contended that the trial court lack pecuniary jurisdiction even
to try the suit. He also contended that the sale deed dated 12.10.1972 is a
fabricated document. According to him, the plaintiff is out of possession
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S.A.(MD)No.545 of 2010
and the valuation of the suit was not proper. Based on the divergent
pleadings, the trial court ought to have framed an issue as to whether the
alienation said to have been made by Palaniammal was actually true or not.
But no such issue was framed. The plaintiff examined himself as P.W.1.
The 3rd defendant Palanichamy entered the witness box as P.W.2, though he
remained exparte in the suit. Ex.A1 to Ex.A6 were marked. The first
defendant examined himself as D.W.1. In support of his claim that he is in
exclusive possession of all the three suit items, one Ganesan was examined
as D.W.2. Ex.B1 to Ex.B17 were marked. After consideration of the
evidence on record, the trial court granted preliminary decree as prayed for.
Challenging the same, the first defendant filed A.S.No.93 of 2008 before
the Sub Court, Palani. The first appellate court confirmed the decision of
the trial court and dismissed the appeal. Challenging the same, the second
appeal came to be filed. Though the second appeal was filed way back in
the year 2010, till date it has not been admitted. During the pendency of the
second appeal, the first defendant passed away and his legal heirs have
come on record.
2. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial question of law and admit this appeal and
take it up 'for disposal' later.
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S.A.(MD)No.545 of 2010
3. Per contra, the learned counsel appearing for the contesting
respondent submitted that no substantial question of law arises for
consideration.
4. I carefully considered the rival contentions and went through the
evidence on record.
5. The contention as regards pecuniary jurisdiction can be disposed of
first. It is true that the contesting defendant had pleaded that the munsif
court lacked pecuniary jurisdiction to try the suit on hand. In fact, a
specific issue was also framed in that regard. Unfortunately, the trial court
failed to render a finding thereon or answer that issue. Be that as it may, the
impugned judgment and decree do not warrant interference on that ground.
This is primarily because Section 21(2) of C.P.C is as follows:-
21(2) No objection as to the competence of a Court with reference to the
pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first instance at the earliest
possible opportunity, and in all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure of justice.
Though an objection was taken in the Court of first instance at the earliest
possible opportunity, the trial court ought to have answered the issue before
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S.A.(MD)No.545 of 2010
the evidence was recorded. For the error committed by the trial court, the
plaintiff cannot suffer. It is well settled that the act of the Court should
harm none. In any event, there has been no consequent failure of justice.
Invoking this statutory principle, I decline to interfere with the impugned
judgment and decree on this ground. There is no dispute regarding the
ownership of the suit properties. There is no dispute regarding the
relationship between the parties. Therefore, even if the suit had been tried
by a Court of unlimited pecuniary jurisdiction, still, there would not have
been any change in the eventual outcome.
6. Since there is no dispute regarding relationship of the parties and
since the suit items 2 and 3 remain intact, preliminary decree passed by the
trial court allotting 50% share in the suit items 2 and 3 in favour of the
plaintiff is confirmed. As regards the suit item No.1, the plaintiff himself
confined his share to 1/6th. According to him, D2 and D3 together will be
entitled to 4/6th share in suit item No.1. But then, this concession made by
the plaintiff was contested by the first defendant. When the first defendant
filed written statement, the defendants 2 and 3 ought to have stepped in.
For reasons best known, they remained exparte. The first defendant claims
that the so called alienation made by Palaniammal in favour of Ramasamy
Gounder was forged. He also claims to be in exclusive possession of suit
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S.A.(MD)No.545 of 2010
item No.1. Since the first defendant had not filed any suit for impeaching
the sale made by the mother and since D2 and D3 have not filed any counter
claim or independent suit against the first defendant, the said issues are left
open. The conferment of 1/6th share in suit item No.1 by the court below is
also confirmed.
7. No substantial question of law arises for consideration. The
impugned judgment and decree is confirmed. Inter-se claims between the
legal heir of the first defendant on the one hand and D2 and D3 on the other
are left open. With this clarification and observation, the second appeal is
disposed of. No cost.
01.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Palani.
2.The District Munsif Court, Palani
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.545 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.545 of 2010
01.03.2022
https://www.mhc.tn.gov.in/judis
