Madras High Court
Lakshmi Ammal vs Gurunathan on 26 October, 2022
Appeal Suit No.54 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Appeal Suit No.54 of 2016
1.Lakshmi Ammal
2.Palaniammal ... Appellants
Versus
1.Gurunathan
2.Murugan
3.Mariappan ... Respondents
Appeal Suit is filed under Section 96 of the Code of Civil Procedure,
to set aside the Judgment and Decree passed in O.S.No.107 of 2011, dated
29.04.2015, on the file of the III-Additional District and Sessions Judge,
Salem.
For Appellants : No Appearance
For Respondents : No Appearance
JUDGMENT
This Appeal Suit arises out of the Judgment and Decree of the III-
Additional District and Sessions Judge, Salem, in O.S.No.107 of 2011,
dated 29.04.2015, in and by which the suit for partition filed by the
Appellants/plaintiffs, was dismissed by the Trial Court.
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Appeal Suit No.54 of 2016
2.In this Appeal Suit, notices were served to the respondents and
thereafter none entered appearance on behalf of the respondents.
Therefore, their names have been printed and the matter was being posted
for hearing. When this matter was called on 14.09.2022, the learned
Counsel for the Appellants reported that there was no instructions for him
and therefore the name of the Learned Counsel was deleted and the
appellants' names are printed in the cause list and the matter is taken up
for hearing today. There was no representation on behalf of both sides.
Under these said circumstances, since the Appeal Suit is pending from the
year 2016, the matter is taken up for final disposal by perusing the
material records in this case.
3.On perusal of the material records of the case, the case of the
plaintiffs is that the suit schedule properties were originally belonging to
One Sennan Chetty, he having purchased the said suit properties by
registering a sale deed dated 27.05.1948. The said Sennan Chetty died
approximately about 40 years prior to the filing of the suit. The plaintiffs 1
& 2 and the first defendant, are the three children of the said Sennan
Chetty. Therefore, the plaintiffs 1 & 2 and the first defendant are entitled to
1/3rd each, in the suit schedule properties. While so, six months prior to the
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Appeal Suit No.54 of 2016
filing of the suit the plaintiffs came to know that the first defendant along
with his son namely, the second defendant had sold the properties in
favour of the third defendant. The said sale is not binding on the plaintiffs.
Therefore, the plaintiffs issued a legal notice on 26.01.2011, to which, the
third defendant, sent a reply notice on 22.02.2011, containing
unsustainable averments. Therefore, a suit in O.S.No.107 of 2011 was
filed, before the III-Additional District Judge, Salem, seeking for partition
of separate possession in the suit schedule properties into three shares and
allottment of 2/3 shares to the plaintiffs.
4.Only the third defendant alone resisted the suit, by filing a written
statement. The case of the third defendant is that, the plaintiffs' father died
40 years ago and thereafter, the first defendant/Gurunathan, was in
exclusive possession and enjoyment of the suit property. The Revenue
records all stood in the name of Gurunathan alone. The plaintiffs who are
claiming shares in the suit properties on the death of their father ought to
have claimed immediately within a period of three years from date of the
death of the father. Therefore, the plaintiffs' suit is barred by limitation.
Even the third defendant, purchased the property by a registered sale deed
dated 30.01.2022 and all the revenue records were mutated in the name of
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Appeal Suit No.54 of 2016
the third defendant. The third defendant is in possession and enjoyment of
the suit properties. The possession is well to the knowledge of the
plaintiffs, therefore, this suit is barred by limitation and the plaintiffs have
not approached this Court with clean hands.
5.On the strength of the said pleadings, the Trial Court framed five
issues, which are as follows:-
" i) Whether the plaintiffs are entitled to 2/3
shares in the suit schedule properties?
ii) Whether the third defendant has purchased the
suit property from the first and second defendant and is
in possession of the suit property?
iii) Whether this suit for the partition filed by the
plaintiffs without claiming prayer for relief of setting
aside the settlement deed, is proper?
iv) Whether the suit is barred by limitation?
v) To what relief the plaintiffs are entitled to?"
6.On the strength of the said issues, the first plaintiff examined
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Appeal Suit No.54 of 2016
herself as P.W.1 and Exs.A-1 to A-4, were marked, on behalf of the
plaintiffs. The third defendant was examined as D.W.1 and one Boopathi,
was examined as D.W.2 and Exs.B-1 to B-14, were marked, on behalf of
the defendants.
7.Thereafter, the Trial Court proceeded to hear the learned Counsel
on either side and by Judgment dated 29.04.2015, found that the plaintiffs
father had died 40 years before filing of the suit. Thereafter, the suit
property was exclusively in possession of the first defendant. The separate
Patta in the name of the first defendant was entered in the A-Register and
all the consequential revenue documents were mutated in the name of the
first defendant. The Trial Court found that not only the suit property was
exclusive possession of the first defendant alone, more than possession and
enjoyment, the possession has also been hostile by the first defendant so as
to extinguish the rights of the plaintiffs.
8.The Trial Court also found that the version of the plaintiffs that
they came to know about the sale of the first defendant in favour of the
third defendant only six months before the filing of the suit as unbelievable
and as they were also in exclusive possession of the property and revenue
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Appeal Suit No.54 of 2016
records had been mutated in their names. On both grounds, it was held that
the plaintiffs' suit is hopelessly barred by limitation and answered all the
issues in favour of the defendants and against the plaintiffs, and dismissed
the suit. Aggrieved by the same, the present Appeal Suit is filed before
this Court.
9.In the memorandum of grounds of appeal, the appellants have
contended that being Class -I heirs of the deceased Sennan Chetty, the
Trial Court ought to have held that both the plaintiffs are entitled to the
2/3rd share in the suit property. It is their further contention that when the
plaintiffs are entitled to 2/3rd share of the suit property, the alleged sale
deed in favour of the third defendant is not binding on them. Therefore, the
Trial Court erred in holding that the relief for setting aside the sale deed
must also have prayed for and also in dismissing the suit on the ground of
limitation.
10.I have considered the aforementioned grounds of the appeal
raised in the Appeal Suit and perused the material records of this case.
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Appeal Suit No.54 of 2016
11.While there may be a force in the contentions of the learned
Counsel for the appellants/plaintiffs as to whether or not a specific relief as
to the setting aside the sale deed has to be made or not, however, it has to
be seen that the suit was filed in the year 2011. Even the alleged illegal
sale in favour of the third party namely the third defendant took place in
the year 2002. The suit properties are agricultural lands. The third
defendant, by producing Exs.B2 to B14, has categorically proved that they
were in exclusive possession and were cultivating in the suit property. The
plaintiffs, have miserably failed to prove that they came to know about the
sale only six months prior to the filing of the suit. There are no averments
in the plaint that the plaintiffs are in joint or constructive possession of the
suit property. It is not their case that the first defendant was holding the
property on their behalf also or sharing the mesne profits even though their
father died 40 years ago prior to the filing of the suit. When the first
defedant had obtained exclusive patta and thereafter when third defendant
was put in exclusive possession in 2002 pursuant to the sale, atleast at that
stage, the cause of action for the suit arose for the plaintiffs and since they
did not take any action whatsoever till the year 2011 the suit is barred by
limitation. The Trial Court has also found so, therefore, the Appeal Suit is
bound to fail.
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Appeal Suit No.54 of 2016
13.In that view of the above findings, I answer the issue No.4
framed by the Trial Court in the affirmative that the suit is barred by
limitation. In that view of the matter, the other issues need not to be
answered. Thus, I do not find any merit in the Appeal Suit.
14.In the result,
(i) The Appeal Suit in A.S. No. 54 of 2016 stands dismissed;
(ii) There shall be no order as to costs.
26.10.2022
Index : yes/no
Speaking/Non-speaking order
klt
To
1.The III-Additional District and Sessions Judge, Salem.
2.The Section Officer, V.R. Section, High Court of Madras.
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Appeal Suit No.54 of 2016
D.BHARATHA CHAKRAVARTHY, J.
klt
A.S.No.54 of 2016
26.10.2022
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