Rajam vs Rajamony ... 1St
2023 Latest Caselaw 12931 Mad

                                                                               S.A.(MD)No.481 of 2023

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 21.09.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VADAMALAI

                                                 S.A.(MD)No.481 of 2023


                     Rajam                                      ... Appellant/Plaintiff


                                                             Vs.



                     1.Rajamony                                ... 1st Respondent/1st Defendant

                     2.Sarasam

                     3.Sundarraj                               ... Respondent Nos.2 & 3 /
                                                                           Defendant Nos.2 & 3


                     PRAYER: Second Appeal is filed under Section 100 of the Civil
                     Procedure Code, 1908, against the judgment and decree passed in
                     A.S.No.56       of   2009    on   the   file   of   the   Subordinate   Judge,
                     Padmanabhapuram dated 21.02.2013 partly confirming the judgment and
                     decree passed in O.S.No.82 of 2004 on the file of the Principal District
                     Munsif Court, Padmanabhapuram dated 30.01.2009.

                                           For Appellant       : Mr.C.K.M.Appaji




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                                                                                S.A.(MD)No.481 of 2023

                                                             JUDGMENT

This Second Appeal is filed against the judgment and decree dated

21.02.2013 passed in A.S.No.56 of 2009 on the file of the Subordinate

Judge, Padmanabhapuram, partly confirming the judgment and decree

dated 30.01.2009 passed in O.S.No.82 of 2004 on the file of the Principal

District Munsif, Padmanabhapuram.

2. The brief facts of the case:

The appellant is the plaintiff in O.S.No.82 of 2004 on the file of

the Principal District Munsif Court, Padmanabhapuram. She has filed the

said suit for partition against the defendants 1 to 3. Defendants 1 and 2

are the brother and sister of the plaintiff and the third defendant is the

husband of the plaintiff. The defendants filed a detailed written

statements. Both side let in oral and documentary evidences. After hot

contest, the Trial Court partly decreed the suit. Aggrieved by the

judgment and decree of the Trial Court, the first defendant filed Civil

Appeal in A.S.No.56 of 2009 before the First Appellate

Court/Subordinate Court, Padmanabhapuram. The First Appellate Court,

after considering both side arguments and both side evidences, partly

allowed the appeal and decreed the suit as prayed for by the plaintiff.

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S.A.(MD)No.481 of 2023

3. Heard the learned counsel for the appellant and perused the

records.

4. The learned counsel for the appellant/plaintiff has argued that

there are five items of suit properties, the item Nos.1 to 4 are ancestral

properties of the plaintiff’s father and the 5th item No.5 is self acquired

property of the plaintiff’s father. The plaintiff and the defendants 1 and 2

are brother and sisters. The plaintiff filed the suit seeking partition of

1/9th share in item Nos.1 to 4 and 1/3rd share in item No.5 of suit

properties. The Trial Court came to the conclusion that the plaintiff and

the defendants 1 and 2 are entitled to 1/3rd share each in item Nos.1 to 5

of suit properties. But, the trial Court partly decreed the suit that the

plaintiff is entitled to 1/9th share in all item Nos.1 to 5 of suit properties.

The first defendant preferred the appeal in A.S.No.56 of 2009 before the

Sub Court, Padmanabhapuram. The First Appellate Court came to

conclusion that the plaintiff is entitled 1/3rd share in the 5th item, but

partly allowed and decreed that the plaintiff is entitled 1/3rd share in 5th

item and confirmed the decree of trial Court that the plaintiff is entitled

1/9th share in item Nos.1 to 4. Though the First Appellate Court decreed https://www.mhc.tn.gov.in/judis

S.A.(MD)No.481 of 2023

the suit as prayed for, but the Trial Court came to the conclusion that the

plaintiff and the defendants 1 to 3 are entitled to 1/3rd share in all items

Nos.1 to 5. Therefore, the plaintiff has fair chance in this Second Appeal.

Therefore the Second Appeal may be admitted to file.

5. On hearing the learned counsel for the appellant and on perusal

of records, it is clear that the plaintiff filed the original suit in O.S.No.82

of 2004 before the Principal District Munsif Court, Padmanabhapuram

seeking the reliefs of partition of 1/9th share in the item Nos.1 to 4 of suit

properties and 1/3rd share in the item No.5 of suit properties. The plaintiff

herself has admitted in her evidence that she filed the suit for partition

seeking 1/9th share in item Nos.1 to 4 and 1/3rd share in 5th item of suit

properties. On perusal of records, the Trial Court has passed decree and

judgment that the plaintiff is entitled 1/9th share in all items Nos.1 to 5

and thereby partly decreed. Being aggrieved the first defendant filed

appeal in A.S.No.56 of 2009 against the decree and judgment of the Trial

Court. But, unfortunately the First Appellate Court decreed the suit in

granting entire reliefs as prayed for the plaintiff and negative the

defendants. That is, the plaintiff’s prayer in the main suit who sought

1/9th share in items Nos.1 to 4 and 1/3 rd share in the 5th item. So, the

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S.A.(MD)No.481 of 2023

relief sought for the plaintiff is fully granted by the First Appellate Court.

Admittedly, against the judgment and decree of the First Appellate Court,

the first defendant has preferred the Second Appeal in S.A.(MD) No.528

of 2013 before this Court and the same is pending. Now, the

appellant/plaintiff has preferred this Second Appeal after lapse of 10

years against the judgment and decree in A.S.No.56 of 2009 of

Subordinate Judge, Padmanabhapuram contending that the Trial Court

came to the conclusion that the plaintiff and the defendants 1 and 2 are

entitled to 1/3rd share each in all the items Nos.1 to 5 of suit properties,

but decreed only 1/9th share in the properties. It is not the case that

subsequent to the filing original suit, the plaintiff sought relief of

partition 1/3rd share in item Nos.1 to 4 also from the date of her plaint and

till the disposal of the 1st appeal or till the date of filing of this Second

Appeal. The plaintiff admitted that she sought only 1/9th share in item

Nos.1 to 4 of suit properties as they are ancestral properties. Now,

beyond the relief of 1/9th share sought for by her, she filed this Second

Appeal seeking 1/3rd share, which is not maintainable as her relief sought

in the original suit is fully granted by the Courts below. In such

circumstances, the appellant/plaintiff has no valid ground to file Second

Appeal or any question of law in her favour. Considering the facts, there

is prima facie no question of law arisen in this Second Appeal in favour https://www.mhc.tn.gov.in/judis

S.A.(MD)No.481 of 2023

of the appellant/plaintiff. Therefore, considering the above facts and

circumstances, this Court is of the opinion that this Second Appeal is

liable to be dismissed in the admission stage itself.

6.In the result, as there is no substantial question of law involved

in this appeal, this Second Appeal is dismissed at the admission stage

itself. No costs.

21.09.2023

NCC : Yes / No Index : Yes / No Internet : Yes / No vsd

To

1.The Subordinate Judge, Padmanabhapuram.

2.The Principal District Munsif, Padmanabhapuram.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.481 of 2023

P.VADAMALAI, J.

vsd

ORDER MADE IN S.A.(MD)No.481 of 2023

21.09.2023

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