Madras High Court
Thanammal vs Andi Gounder on 12 October, 2022
1 CRP.No.2569 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.10.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 2569 of 2017
and
C.M.P. No.12274 of 2017
Thanammal ..
Petitioner
Versus
Andi Gounder
..Respondent
Civil Revision Petition is filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order dated 07.06.2016 made in
I.A. No.157 of 2014 in I.A.No.176 of 2010 in O.S. No.26 of 2005 on the
file of the learned Sub-Judge, Cheyyar.
For Petitioner : Mr. S. Prabhu
For Respondent : No Appearance
---
1/8
https://www.mhc.tn.gov.in/judis
2 CRP.No.2569 of 2017
ORDER
This Civil Revision Petition has been filed by the petitioner seeking to
set aside the fair and decreetal order dated 07.06.2016 made in I.A. No.157
of 2014 in I.A.No.176 of 2010 in O.S. No.26 of 2005 on the file of the
learned Sub-Judge, Cheyyar.
2. The petitioner herein is the plaintiff and the respondent herein is
the defendant in the original suit.
3. The petitioner /plaintiff filed a suit in O.S.No.26 of 2005 before the
Sub-Ordinate Judge, Cheyyar, seeking for partition and separate possession
in the suit schedule property . The Trial Court partly allowed after
considering oral and documentary evidence, by Judgment and Decree dated
24.03.2008 as the plaintiff/petitioner herein is entitled to 1/4th share in the
suit properties and decreed the suit as prayed for. Being Aggrieved by the
aforesaid Judgment and decree, the Defendants preferred the First Appeal in
A.S. No.15 of 2008 on the file of the District Judge, Tiruvannamalai. After
hearing both sides, the First Appellate Court dismissed the same and upheld
https://www.mhc.tn.gov.in/judis
the Judgment and Decree passed by the Trial Court by Judgment dated
29.04.2009. Being not satisfied with the aforesaid Judgment passed by the
First Appellate Court, the Defendant has filed the Second Appeal in S.A.
No.1612 of 2010 before this Court seeking to set aside the aforesaid
Judgment. After hearing both sides, this Court partly allowed the second
appeal by Judgment dated 20.09.2011 holding that the respondent/plaintiff
is not entitled to claim any share in the first item of ancestral property and
so far as the second item of the property is concerned, the plaintiff is
entitled 1/4th share in the suit property as held by Courts below.
Subsequently, the plaintiff has filed final decree petition in I.A.No.176 of
2010 before the Trial Court. Thereafter, the plaintiff has filed I.A. No.157 of
2017 in 176 of 2010 in O.S. No.26 of 2005 under Order 6 Rule 17 of C.P.C.
seeking to amend the boundaries ans survey number of the suit schedule of
Property in the final decree petition. The Trial Court dismissed the I.A.
No.157 of 2014 holding the reason that the petitioner never mentioned after
due diligent only this mistake has occurred. Being not satisfied with the
aforesaid order, the plaintiff/petitioner herein has filed the present Civil
Revision Petition to set aside the same.
https://www.mhc.tn.gov.in/judis
4.The learned counsel for the petitioner would submit that there is
some correction in the boundaries and survey number with regard to item
No.2 schedule property, the petitioner has filed the I.A. No.157 of 2014 to
include the same in the final decree petition in which there is no dispute as
to right over of the petitioner in the 2nd Item of schedule mentioned
property. While this Hon'ble Court upheld that the petitioner is entitled to
1/4th share in the item No.2 property which has attained finality, the
petitioner should be allowed to amend the boundaries and survey numbers
related to Item No.2 of suit schedule property. The Trial Court without
appreciating the aforesaid factual aspects, dismissed the aforesaid I.A while
the petitioner is entitled 1/4th share in the item No.2 of the suit property. If
the amendment is not carried out in the petition, the Trial Court cannot
effectively pass final decree in consonance with the Judgment of High Court
since the boundaries and survey numbers are wrongly mentioned in the
previous petition.
5. It has been further submitted that when the necessity to amend the
Item No.2 of suit property with correct particulars arose only after the
https://www.mhc.tn.gov.in/judis
pronouncement of the Judgment by this High Court whereas the Trial Court
has erred in holding that the petitioner has never mentioned that after due
diligent only this mistake occurred. Hence, seeks to set aside the order
dated 07.06.2016 passed by the Sub-Court, Cheyyar.
6. The learned counsel for the respondent would submit that once the
case has been taken for cognizance by the First and Second Appellate
Court, now the application for amendment is unsustainable. After final
decree petition, the petitioner is tactfully trying to include different extent
and measurement with new boundaries to get over the mistake occurred in
the boundaries and survey number which were already recorded in the
petition filed by the parties. Hence, the Trial Court has rightly dismissed the
aforesaid application.
7. Heard the learned counsel for the petitioner and the learned
counsel for the respondent as well as perused the materials available on
record.
https://www.mhc.tn.gov.in/judis
8. On a perusal of the records, it is seen that the plaintiff filed the suit
in O.S. No.26 of 2005 for partition in the Suit schedule property with regard
to Item Nos.1 and 2. The boundaries and survey number in the suit
schedule property were mentioned at the time of filing of the aforesaid
original suit. It is admitted fact that the plaintiff was not given any share
insofar as item No.1 is concerned and however the plaintiff is entitled to
1/4th share in the Item No.2 of the suit schedule property. The same was
upheld by this Court in S.A. No.1612 of 2010. As the petitioner came to
understand only after the case attained finality that there is some
discrepancy in the boundaries and survey number in the Item No.2 of the
suit schedule property, she intends to amend the schedule of property by
including the survey number and boundaries in a proper manner relating to
Item No.2 in the final decree petition which would not cause any hardship
to the respondent and would not arise any new cause of action since 1/4th
share is alone entitled to the petitioner in the Item No.2 of suit schedule
property. Hence, the proper boundaries and survey numbers of the 2nd item
of the suit property is necessary to include in the final decree petition, to
divide the 2nd item of suit schedule property as per the decree passed by
this Court. Hence, the findings of the Trial Court is hereby set aside and the
https://www.mhc.tn.gov.in/judis
petitioner is permitted to amend the boundaries and Survey Number in the
Item No.2 of suit schedule property. After this amendment, the final decree
petition shall be disposed of within a period of three months from the date
of receipt of copy of this order.
9. Accordingly, this Civil Revision Petition is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
12.10.2022
Lbm
Index : Yes/No
Speaking Order : Yes/No
To:
1. The learned Sub-Judge, Cheyyar.
2. The Section Officer, V.R.Section
High Court, Madras.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
Lbm
C.R.P.No. 2569 of 2017
and
C.M.P. No.12274 of 2017
12.10.2022
https://www.mhc.tn.gov.in/judis
