Madras High Court
H.Kamalesh Kumar vs K.Manikaraja on 6 March, 2023
2023/MHC/933
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATISH KUMAR
A.S(MD)Nos.284 and 285 of 2008
and
C.M.P(MD)No.10007 of 2022
A.S(MD)No.284 of 2008
1.H.Kamalesh Kumar
2.H.Rajesh Kuma(died),
3.H.Hukumchand
4.Seema Singhal
5.Minor Umang Singhal
(the fifth appellant, minor, is represented by his mother and
guardian, the fourth appellant Seema Singhal)
(Appellants 4 and 5 are bring on record as Lrs of the deceased
second appellant as per order of this Court made in C.M.P(MD)
No.2985 of 2017 in A.S(MD)No.284 of 2008, dated 27.03.2017)
:Appellant/Defendants 1 to 3
.vs.
K.Manikaraja :Respondent/Plaintiff
A.S(MD)No.285 of 2008
H.Kamalesh Kumar :Appellant/Plaintiff
.vs.
K.Manikaraja :Respondent/Defendant
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PRAYER: Appeal Suits filed under Section 96 of the Civil
Procedure Code against the judgments and decrees made in
O.S.No.452 of 2004 and O.S.No.14 of 2007, dated 17.10.2007, on
the file of the Additional District Judge(Fast Track Court No.II),
Madurai.
For Appellant-1 :Mr.G.Sudalayandi
in A.S(MD)No.284/2008
and Respondent in
A.S(MD)No.285 of 2008
For Respondent :Mr.G.Aravinthan
in both appeals
COMMON JUDGMENT
************************
A.S(MD)No.284 of 2008 is filed against the judgement made
in O.S.No.452 of 2004, filed for preliminary decree for partition and
A.S(MD)No.285 of 2008 is filed against the judgment made in
O.S.No.14 of 2007 filed for recovery of arrears. O.S.No.452 of 2004
is partly allowed in respect of preliminary decree and past damages
and in other aspects, the suit is dismissed and O.S.No.14 of 2007 is
dismissed. Challenging the decree and judgment in both the suits,
these two appeal suits are filed.
2.The brief facts leading to the filing the appeals are as
follows:
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The suit property originally owned by one Mohammed
Ibrahim Rowther and Hajee K.Hussain Rowther. Both had
undivided half share in the suit property. The first defendant
namely, the appellant in A.S(MD)No.284 of 2008, has purchased
1074 sq ft from the legal heirs of Mohammed Ibrahim Rowther. In
the meanwhile, the plaintiff has also purchased 450 sq.ft from the
remaining share of Mohammed Ibrahim Rowther and he has filed a
suit for partition. The above suit has been contested only by the
first defendant, namely, the first appellant in A.S(MD)No.284 of
2008 and the suit has been decreed for 1/6th share in favour of the
respondent herein, who was the plaintiff in O.S.No.452 of 2004.
Similarly the appellant in A.S.No.284 of 2008 also filed a suit in
O.S.No.14 of 2007 for recovery of arrears of rent which has been
declined by the trial Court.Challenging the same, A.S(MD)No.285
of 2008 is filed. Even in the partition suit, the only contestant is
the appellant No.1 in A.S(MD)No.l284 of 2008.The others were
made only as formal parties.After their death, their legal heirs
have been added as parties in the proceedings.
3.It is the contention of the learned counsel for the first
appellant that he is the only contestant before the trial Court
during the pendency of these appeals,the matter has been amicably
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settled between the first respondent and himself and the first
respondent's share of 450 sq.fts has already been demarcated and
allotted to him.In such view of the matter,no further adjudication is
required and the appeals may be dismissed confirming the
judgments of the trial Court.
4.Since the first appellant is the main contestant before the
trial Court and other appellants are husband and grand-father of
the third appellant. This Court is of the view that the main issue
itself is amicably settled, since the rights of the other appellants
are declared by the trial Court, the appellants 2 and 3 can work out
their remedy in the final decree proceedings.
5.Since no further adjudication is required, both the appeals
are dismissed as settled out of Court. The appellant/s are entitled
for refund of Court fee as per the rule in force. No costs.
Consequently, connected Miscellaneous Petition is closed.
03.03.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
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To
1.The Additional District Judge,
(Fast Track Court NO.II),
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SATISH KUMAR.,J.
vsn
COMMON JUDGMENT MADE IN
A.S(MD)Nos.284 and 285 of 2008
and
C.M.P(MD)No.10007 of 2022
06.03.2023
https://www.mhc.tn.gov.in/judis
