Madras High Court
Subhadra Amma vs Kumaradhas ... 1St on 30 June, 2023
C.M.A(MD)No.1635 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1635 of 2013
and
C.M.P(MD)No.2038 of 2019
Subhadra Amma ... Appellant/1st Respondent/
Plaintiff
Vs.
Thanka Nadar(Died)
1.Kumaradhas ... 1st Respondent/2nd Appellant/
5th Defendant
2.Chellammal
3.Sathiadhas (Died)
4.Swamidhas
5.Rani
6.Lyla
7.Sundaradhas
8.Ramadhas
9.Rajeswari
10.Nageswari ... Respondents/Appellants 3-11/
https://www.mhc.tn.gov.in/judis Legal heirs of 4th Defendants
1/8
C.M.A(MD)No.1635 of 2013
11.Thilothama Amma
12.Komalangi Amma
13.Balakrishnan Nair
14.Parimala Devi
15.Syamala Devi
16.Chandra Prabha ... Respondents/Respondents 2-7/
Defendants 1-3 & Legal heirs
17.Mary Stella
18.Jerin Asha
19.Jerin Anusha
(R17-R19 are brought on record as legal heirs of
deceased R3 vide Court order, dated 26.04.2022 in
C.M.P(MD)No.133 of 2022)
PRAYER: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of
Code of Civil Procedure, to set aside the judgment and decree of the
lower appellate Court, dated 26.04.2013 passed in A.S.No.75 of 2003 on
the file of Camp Court Judge at Kuzhithurai, II Additional Subordinate
Judge, Nagercoil, remanding the order, dated 17.09.2003 the suit in
O.S.No.51 of 1999 on the file of the Principal District Munsif,
Kuzhithurai for fresh disposal and to allow the appeal.
For Appellant : M/s.J.Anandha Valli
For R1,R2,R5,R7 & R9 : Mr.S.C.Herold Singh
For R4,R6,R10,R11,R13,
https://www.mhc.tn.gov.in/judis R14-R16,R17,R18,R19 : No Appearance
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C.M.A(MD)No.1635 of 2013
R3 & R12 : Died
JUDGMENT
The plaintiff in a suit for partition has filed the present appeal
challenging the order of remand passed by the first appellate Court.
2. The appellant herein as plaintiff had filed O.S.No.51 of 1999 on
the file of Principal District Munsif Court, Kuzhithurai for the relief of
partition and separate possession of her 1/4th share in the plaint schedule
property. According to the plaintiff, the suit schedule properties
originally belonged to one Kumara Pillai, who died intestate and
issueless. Therefore, the property devolved upon his brother Sivasankara
Pillai. The plaintiff and defendants 1 to 3 are the legal heirs of the said
Sivasankara Pillai. The defendants 4 and 5 are strangers to the family and
they are attempting to trespass into the suit schedule properties. Hence,
they have prayed for decree for partition of 1/4th share.
3. Per contra, though the defendants have admitted the title of
Kumara Pillai, had contended that Sivasankara Pillai was not the brother
of Kumara Pillai. On the other hand, one Gowri was the sister of Kumara
Pillai. After the death of Kumara Pillai, the property devolved upon the
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said Gowri and the defendants 4 and 5 have purchased the property from
C.M.A(MD)No.1635 of 2013
the sons of Gowri. The defendants further claim that they have been in
possession of the property for more than 55 years and they claimed title
by adverse possession.
4. The trial Court after framing issues and going through the oral
and documentary evidence, ultimately found that the defendants have not
established the plea of adverse possessions and proceeded to grant a
decree for partition. Challenging the said decree, the defendants 4 and 5
had filed A.S.No.75 of 2003 before II Additional Sub Court, Nagercoil.
The first appellate Judge had arrived at a finding that the trial Court has
not framed any issue with regard to the fact whether Sivasankara Pillai is
the brother of Kumara Pillai. Since the said issue has not been framed,
the first appellate Court had set aside the preliminary decree of the trial
Court and has remitted the matter back to the trial Court. This order of
remand is under challenge in the present appeal.
5. According to the learned counsel for the appellant, both the
parties have not raised any pleading or any issue or let in any evidence
disputing that Sivasankara Pillai is not the brother of Kumara Pillai.
Suddenly, the first appellate Court had assumed that there is a dispute
whether Sivasankara Pillai is the brother of Kumara Pillai. Therefore,
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without any pleading or evidence, the first appellate Court ought not to
C.M.A(MD)No.1635 of 2013
have remitted the matter back to the trial Court to frame an issue. Hence,
she prayed for allowing the appeal and directing the first appellate Court
to decide the appeal on merits.
6. Per contra, the learned counsel for the respondent had
contended that in Paragraph Nos.3 and 5 of the written statement filed by
the 4th defendant, they have specifically disputed about the relationship
of Sivasankara Pillai with Kumara Pillai. However, the trial Court has
not considered the said issue and proceeded to decree the suit only on the
ground that the defendants had failed to establish the plea of adverse
possession.
7. The appellant/plaintiff had filed C.M.P(MD)No.2038 of 2019 to
receive the registration copy of a partition deed, dated 20.02.1954 as
additional evidence in this appeal. According to the learned counsel
appearing for the appellant, this document would establish the
relationship between Kumara Pillai and Sivasankara Pillai.
8. If the trial Court had failed to consider certain issue on its
merits, it is for the appellate Court to re-appreciate the oral and
documentary evidence independently to arrive at a finding. For the said
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purpose, an order of remand cannot be passed. Now, the appellant has
C.M.A(MD)No.1635 of 2013
come out with a document purporting to establish the relationship
between Kumara Pillai and Sivasankara Pillai through a registered
partition deed, dated 20.02.1954. However, this Court is not inclined to
accept the said document as an additional evidence in this appeal. Hence,
C.M.P(MD)No.2038 of 2019 is closed. The appellant is at liberty to
place the said document as additional document before the first appellate
Court. The first appellate Court is directed to follow Order 41 Rule 27
and 28 of Code of Civil Procedure in receiving the said document.
9. In view of the above said deliberations, the order of remand is
hereby set aside and the matter is remitted back to the file of the first
appellate Court to decide the appeal on merits and in accordance with
law on the basis of the existing oral and documentary evidence. In case,
if additional evidence on the side of the appellant is allowed, the
respondents in the first appeal may be permitted to let in contra oral or
documentary evidence. However, for the purpose of receiving additional
evidence, again an order of remand should not be passed by the first
appellate Court. The entire exercise shall be completed by the first
appellate Court on or before 31.12.2023.
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C.M.A(MD)No.1635 of 2013
10. With the said observations, C.M.A(MD)No.1635 of 2013
stands allowed and C.M.P(MD)No.2038 of 2019 stands closed. No costs.
30.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Note : Registry is directed to return the
original document to the learned
counsel for the appellant.
gbg
To
1.The II Additional Subordinate Judge,
Nagercoil.
2.The Principal District Munsif,
Kuzhithurai.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1635 of 2013
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.1635 of 2013
30.06.2023
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