Madras High Court
Anjalai Ammal vs Amsalakshmi on 8 December, 2023
S.A.Nos.281 & 421 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.Nos. 281 & 421 of 2017
S.A.No.281 of 2017:
Anjalai Ammal ...Appellant
Vs.
Amsalakshmi ...Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree in A.S.No.8 of 2015 on the file of Subordinate
Judge, Panruti, dated 21.12.2016 in confirming the judgment and decree in
O.S.No.59 of 2002, on the file of the District Munsif, Panruti, dated 29.04.2015.
S.A.No.421 of 2017:
Anjalai Ammal ...Appellant
Vs.
1.Amsalakshmi
2.Dhavakumar
3.Sudha
4.Saroja
5.Dharumanathan
6.Arul ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
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against the judgment and decree in A.S.No.11 of 2015 on the file of Subordinate
Judge, Panruti dated 21.12.2016 in confirming the judgment and decree in
O.S.No.42 of 2000 on the file of the District Munsif, Panruti dated 29.04.2015.
For Appellant in both S.A.'s : Mr.V.Srimathi
For Respondents 1 to 3 in both S.A's : M/s.R.Gururaj
For Respondents 4 to 6 in both S.A's : No appearance
COMMON JUDGEMENT
The appellant herein filed a suit for declaration of title and recovery of
possession in respect of 5 items in O.S.No.42 of 2000. The suit was dismissed
by the Trial Court. Aggrieved by the same, she preferred an appeal in A.S.No.11
of 2015 on the file of Sub-Court, Panruti. The First Appellate Court affirmed the
findings of the Trial Court. Aggrieved by the same, the appellant has come by
way of S.A.No.421 of 2017.
2. The appellant also filed another suit in O.S.No.59 of 2002 seeking
mandatory injunction to remove the construction put up by the respondents. The
2nd suit was filed by the appellant on the ground that pending first suit, the
respondents put up construction in item 4 in the earlier suit. The second suit for
mandatory injunction was also dismissed by the Trial Court. Aggrieved by the
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same, the appellant preferred an appeal in A.S.No.8 of 2015 on the file of Sub-
Court, Panruti. The First Appellate Court affirmed the findings of the Trial Court
and dismissed the first appeal. Aggrieved by the same, the appellant has come by
way of S.A.No.281 of 2017
3. For the sake of convenience, the parties are referred as per their ranking
in O.S.42 of 2000. The subject matter of the S.A.No.421 of 2017 consists of five
items and item 4 in S.A.No.421 of 2017 is the subject matter of S.A.No.281 of
2017. The 1st respondent in S.A.No.421 of 2017 is shown as respondent in
S.A.No.281 of 2017.
4. According to the appellant/plaintiff, the suit property originally
belonged to appellant's father Chinnathambi Padayachi. The suit property was
allotted to said Chinnathambi Padayachi in oral partition between him and his
brothers in the year 1945. Thereafter, Chinnathambi Padayachi executed
settlement deed in favour of appellant/plaintiff on 27.12.1972. Thus, the
appellant had been in possession and enjoyment of the suit property from 1972
onwards. It was also averred by the appellant that suit property was let out to
various persons like Govindasamy Padayachi, Murugesa Padayachi and
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Ramachandira Padayachi and through them the same has been enjoyed by him.
It was also claimed by the appellant that 1st defendant's father filed a suit and
obtained some decree in his favour without impleading the plaintiff and
therefore, any decree obtained by the respondent's predecessor will not bind her.
As the respondents denied the right of the appellant and acted against her
interest, she was constrained to file a suit for declaration of title and recovery of
possession.
5. The respondents/defendants filed a written statement and denied the
oral partition pleaded by the appellant as if suit property was alloted to her father
Chinnathambi Padayachi share in the year 1945. The respondents also denied
the settlement deed executed by Chinnathambi Padayachi in favour of appellant
in the year 1972. It was further claimed by the respondents that Murugesa
Padayachi under whom the defendants 2 to 4 claiming right filed suit for
partition in O.S.No.263 of 1974 against appellant's father Chinnathambi
Padayachi and got preliminary decree for partition on 24.09.1977. Thereafter,
final decree was passed on 30.06.1979 allotting suit properties in favour of
Murugesa Padayachi. In pursuance of said decree, Murugesa Padayachi had
taken possession of the suit properties on 08.11.1979. Thereafter, Murugesa
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Padayachi executed a Will bequeathing the suit properties in favour of
defendants 1 to 4. On these grounds, the respondents sought for dismissal of the
suit.
6. The appellant and 1st respondent reiterated their stand in their pleadings
in O.S.No.59 of 2002.
7. Since the suit properties in both the suits are overlapping with each
other and the parties were also one and the same, both the suits were tried
together and the evidence was recorded in O.S.No.42 of 2000. Before the Trial
Court, the appellant/plaintiff was examined as P.W.1 and one Pazhaniammal
was examined as P.W.2. On behalf of the plaintiff, 22 documents were marked
as Ex.A1 to Ex.A22. On behalf of the defendants, the 5th defendant was
examined as D.W.1 and 4 other witnesses were examined as D.W.2 to D.W.5.
On behalf of the defendants, 72 documents were marked as Ex.B1 to Ex.B72.
8. The Trial Court, on appreciation of oral and documentary evidence
available on record, came to the conclusion that suit properties was alloted to the
share of Murugesa Padayachi, the predecessor in interest of defendants 2 to 4 in
the partition suit. In O.S.No.263 of 1974, the father of the appellant
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Chinnathambi Padayachi was defendant in the said suit. The preliminary decree
passed in the said suit was marked as Ex.B19. The final decree passed in the
said suit was marked as Ex.B20. The delivery warrant under which the
properties allotted to Murugesa Padayachi was taken possession by him was
marked as Ex.B22. The Trial Court, based on Ex.B19, Ex.B20 and Ex.B22,
came to the conclusion that suit properties were allotted to the share of
Murugesa Padayachi, in O.S.No.263 of 1974 and he had been taken possession
of the suit property through Court. In view of the said finding, the Trial Court
came to the conclusion that claim made by the appellant based on Ex.A1,
settlement deed executed by Chinnathambi Padayachi in her favour is not
tenable in law.
9. The First Appellate Court also concurred with the findings rendered by
the Trial Court. Both the Courts below concurrently found that the suit property
was allotted to the share of Murugesa Padayachi in O.S.No.263 of 1974, the
earlier partition suit was filed by said Murugesa Padayachi, the predecessor in
interest of defendants 2 to 4. The said suit was filed against the father of the
appellant namely Chinnathambi Padayachi. In such circumstances, the decree
passed against Chinnathambi Padayachi is binding on appellant who is claiming
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right under the settlement deed allegedly executed by Chinnathambi Padayachi.
The learned counsel for the appellant tried to assail the findings of the Courts
below on the ground that in O.S.No.263 of 1974, Chinnathambi Padayachi was
set exparte and the appellant had no knowledge about the said decree. It is
settled law even exparte decree is binding on the defendants who were set
exparte unless it is set aside. The appellant, who is claiming right under
Chinnathambi Padayachi cannot say that the decree passed against
Chinnathambi Padayachi is not binding upon her in the absence any challenge
to the earlier partition decree in O.S.No.263 of 1974 in the manner known to
law. The said decree is binding on appellant. Hence, I do not find any substantial
question of law arising for consideration in this second appeal to interfere with
the findings of the Courts below.
10. Accordingly, both the second appeals are dismissed.
a) by affirming the judgment and decree passed in A.S.No.11 of 2015 and
A.S.No.8 of 2015 on the file of Subordinate Judge, Panruti dated 21.12.2016
confirming the decree and judgment passed in O.S.No.42 of 2000 and
O.S.No.59 of 2002 on the file of the District Munsif, Panruti dated 29.04.2015.
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b)In the above facts and circumstances of the case, there will be no order
as to costs.
08.12.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
nr
To
1.The learned Subordinate Judge, Panruti
2.The learned District Munsif, Panruti,
S.SOUNTHAR, J.
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S.A.Nos.281 & 421 of 2017
nr
S.A.Nos. 281 & 421 of 2017
08.12.2023
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