Madras High Court
Mukthar Ahmed vs K.M.Siddick Ahamed on 9 March, 2022
S.A.No.512 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.512 of 2014
and
M.P.No.1 of 2014
1.Mukthar Ahmed
2.Rehana Begaum
Rizwan Begaum (died) ... Appellants
Vs.
1.K.M.Siddick Ahamed
Noorul Ahamed (Died)
2.Alataf Basha
3.Subeda ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree made in A.S.No.23 of 2012 on the file of the
Subordinate Court, Gudiyattam, Vellore District, dated 28.01.2014
confirming the judgment and decree made in O.S.No.121 of 2007 on the file
of the District Munsif, Gudiyattam, Vellore District, dated 13.03.2012.
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S.A.No.512 of 2014
For Appellants : Mr.K.A.Ravindran
**********
JUDGMENT
The plaintiffs are the appellants in this second appeal.
2. The case of the plaintiffs is that the suit properties formed part of
certain ancestral properties which originally belonged to their grandfather.
He died in the year 1948 leaving behind his wife, seven sons and one
daughter. His wife also died subsequently. Two of the sons viz., Ezanullah
and Khader Basha are the father of the plaintiffs and the defendants
respectively. The further case of the plaintiffs is that each son is entitled for
2/15th share and the daughter is entitled for 1/15th shares.
3. The suit was filed in O.S.No.49 of 1973 (re-numbered as
O.S.No.121 of 1988) by one of the legal heirs before the Sub-Court,
Tirupattur seeking for the relief of partition and allotment of shares in the suit
properties. The plaintiffs were added as the defendants 11 to 13 and the
father of the defendants was added as the 9th defendant in the said suit. The
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S.A.No.512 of 2014
preliminary decree was passed on 25.03.1976 and the same was agitated upto
this Court. Ultimately a final decree application was filed and according to
the plaintiffs, they are entitled to the share that was claimed through their
father. In the mean time, the parties also seemed to be enjoying certain
properties which forms part of the partition deed. Admittedly the final decree
was not passed and the application came to be dismissed.
4. The grievance of the plaintiffs is that the defendants started
alienating the lands in possession of the plaintiffs and which were also the
subject matter of the preliminary decree in O.S.No.121 of 1988. Hence, the
suit came to be filed for declaration of title and for permanent injunction.
5. The defendants resisted the suit mainly on the ground that the final
decree is yet to be passed in the partition suit and the properties were not
divided by metes and bounds and therefore, the plaintiffs cannot seek for the
relief as against the co-owners.
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S.A.No.512 of 2014
6. Both the Courts below on considering the facts and circumstances of
the case and on appreciation of oral and documentary evidence concurrently
found that the plaintiffs are not entitled for the relief sought for and
accordingly the suit was dismissed. Aggrieved by the same, the plaintiffs
have filed this second appeal.
7. Both the Courts below found that the properties in question is in
joint possession of all the co-owners and it is yet to be divided through metes
and bounds. Therefore, even if any alienation takes place, it will be subject
to the final decree to be passed in the partition suit. Hence, at this stage, the
plaintiffs are not entitled for the relief sought for by them. This Court does
not find any perversity in the findings of both the Courts below and it is
perfectly in accordance with law. No substantial questions of law are
involved in this second appeal.
8. In the result this second appeal is dismissed. Considering the facts
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S.A.No.512 of 2014
and circumstances of the case there shall be no order as to costs.
Consequently, the miscellaneous petition is closed.
09.03.2022
Index :Yes/No
Internet :Yes/No
Speaking order/ Non-Speaking order
dsa
To
1.The Subordinate Judge,
Gudiyattam, Vellore District.
2.The District Munsif,
Gudiyattam, Vellore District.
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S.A.No.512 of 2014
N.ANAND VENKATESH,J.
dsa
S.A.No.512 of 2014
09.03.2022
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