Madras High Court
Santha vs Ganesan on 20 March, 2023
C.M.A. (MD)Nos.1274 and 1275 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.03.2023
CORAM:
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A.(MD)Nos.1274 and 1275 of 2016
C.M.A(MD).No.1274 of 2016
S.K.Chellaiah (died)
1.Santha
2.Dhanalakshmi
3.Raja Lakshmi
4.Annalakshmi
5.Seethalakshmi
6.Neelakandan
(R6 rep., by his mother Santha/1st respondent) .
..Appellants/Respondents/ Plaintiffs
Vs.
Ganesan ... Respondent/Appellant/Defendant
PRAYER: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(U) of
the Code of the Civil Procedure, to set aside the judgment and decree in A.S.No.
124 of 2007 on the file of the Subordinate Court, Pudukkottai dated 21.08.2013
setting aside the judgment and decree passed in O.S.No.163 of 1994 on the file of
the District Munsif Court, Aranthangi dated 31.03.2004.
For Appellants : Mr.P.Ganapathi Subramanian
For Respondent : Mr.R.Paranjothi
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C.M.A. (MD)Nos.1274 and 1275 of 2016
C.M.A(MD).No.1275 of 2016
S.K.Chellaiah (died)
1.Santha
2.Dhanalakshmi
3.Raja Lakshmi
4.Annalakshmi
5.Seethalakshmi
6.Neelakandan
(R6 rep., by his mother Santha/1st respondent) .
..Appellants/Respondents/ Plaintiffs
Vs.
Ganesan ... Respondent/Appellant/Defendant
PRAYER: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(U) of
the Code of the Civil Procedure, to set aside the judgment and decree in A.S.No.30
of 2005 on the file of the Subordinate Court, Pudukkottai dated 21.08.2013 setting
aside the judgment and decree passed in O.S.No.163 of 1994 on the file of the
District Munsif Court, Aranthangi dated 31.03.2004.
For Appellants : Mr.P.Ganapathi Subramanian
For Respondent : Mr.R.Paranjothi
COMMON JUDGMENT
The present appeals have been filed by the plaintiff in a suit for
declaration of title and permanent injunction challenging the order of remand
passed by the first appellate Court.
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C.M.A. (MD)Nos.1274 and 1275 of 2016
2. According to the plaintiff, the suit properties were originally owned by
his father Karuppaiah. By way of some oral arrangement, the suit properties were
allotted to his share in the year 1974 and he has been in possession and enjoyment
of the same exclusively from the year 1974 onwards. However, his possession
was disputed in the year 1994. He had filed the present suit for declaration of title
and permanent injunction as against his brother Ganesan. The trial Court had
arrived at a findings that the plaintiff has established his title and possession over
the property and decreed the suit as prayed for. In the said suit, the defendant had
raised a counter claim contending that the properties were not allowed to the share
of the plaintiff and they continued to be undivided properties. Hence, by way of
counter claim the defendant prayed for a decree for partition.
3. The trial Court since it has arrived at a finding that the properties have
already been divided, the prayer for counter claim was also rejected by the trial
Court. Challenging the decree in the suit and dismissal of the counter claim, the
defendant had filed A.S.No.30 of 2005 and A.S.No.124 of 2007. The first
appellate Court had found some discrepancies with regard to the extent of the
property, for which, the prayer was sought for by the plaintiff and remanded the
matter back to the trial Court providing an opportunity to the plaintiff to amend
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C.M.A. (MD)Nos.1274 and 1275 of 2016
the plaint and to prove his case. This order of remand is under challenge in these
present appeals by the plaintiff.
4. According to the learned counsel appearing for the appellant/plaintiff,
after confirming the findings of the trial Court, the first appellate Court ought not
to have remanded the matter back to the trial Court. He further contended that
when the plaintiff had established his title and possession over the suit schedule
property and the first appellate Court having found that the defendant has not
established his case, ought not to have remitted the matter back to the trial Court
for fresh consideration.
5. Per contra, the learned counsel appearing for the respondent/defendant
had contended that the order of remand cannot be passed to fill up the lacuna on
the part of the plaintiff.
6. I carefully considered the submissions made on either side.
7. The trial Court has decreed the suit of the plaintiff for the relief of the
declaration of title and permanent injunction and dismissed the counter claim for
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C.M.A. (MD)Nos.1274 and 1275 of 2016
partition. The first appellate Court in paragraph No.13 of the judgment has arrived
at a finding that the plaintiff has to amend the plaint and has to let in oral and
documentary evidence to prove his case. It is the settled position of law that a
second chance cannot be given to the plaintiff or the defendant to establish their
case, incase they have failed to let in proper evidence during trial. Therefore, the
order of remand is not valid in the eye of law.
8. The findings of the first appellate Court are hereby set aside and the
matter is remitted back to the file of the first appellate Court, namely, the
Subordinate Court, Pudukkottai, to consider it afresh on merits and in accordance
with law on the basis of the oral and documentary evidence, which are already
available on record and also on the grounds raised in both the appeals.
9. With the above observation, these Civil Miscellaneous Appeals are
allowed. No costs.
20.03.2023
NCC : Yes/No
Index : Yes/No
Rmk
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C.M.A. (MD)Nos.1274 and 1275 of 2016
R.VIJAYAKUMAR, J.
Rmk
To
1.The Subordinate Judge, Pudukkottai.
2.The District Munsif, Aranthangi.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
C.M.A.(MD)Nos.1274 and 1275 of 2016
20.03.2023
https://www.mhc.tn.gov.in/judis
