Madras High Court
K.Manoharan vs R.Suredhra Gurusamy on 1 August, 2024
CMA.(MD)No.468 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01/08/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.468 of 2021
and
CMP(MD)No.4071 of 2021 and 4588 of 2024
1.K.Manoharan
2.C.Seenivasan : Appellants/
Respondents 4 to 6/
Defendants 4 and 6
Vs.
1.R.Suredhra Gurusamy
2.R.Rajendran
3.K.Saraswathi
4.K.Anitha
5.K.Brindha
6.M.Amarjothi (died) : Respondents 1 to 6/
7.R.Kaliammal Appellants/Plaintiffs
8.Shanthi
9.Vijayalakshmi
10.K.Ponraj
Respondents 11 to 13 are
brought on record as Lrs
of the deceased 6th respondent,
vide Court order, dated
28/04/2023 made in CMP(MD)
Nos.1332, 1334 and 1336 of 2023
in CMA(MD)No.468 of 2021) : Respondents 7 to 10/
Respondents 1 to 3& 5/
Defendants 1 to 3 & 5
PRAYER:-Civil Miscellaneous Appeal is filed under
Order 41 Rule 1 and Section 96 of the Civil Procedure
Code, to set aside the judgement and decree passed in AS
No.40 of 2017 on the file of the District Court (Fast
Track) and Mahila Court, Theni, dated 07/08/2020,
remanding the judgment and decree, dated 05/11/2016 in OS
No.143 of 2013 on the file of the Sub Court, Theni.
https://www.mhc.tn.gov.in/judis
1/15
CMA.(MD)No.468 of 2021
For Appellants : Mr.M.V.Venkateseshan
Senior counsel
for Mr.S.Vellaichamy
For R1 to R3 : Mr.T.Wins
For 6th Respondent : Died
For R7 to R10 : No appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed against the
judgement and decree passed in AS No.40 of 2017 by the
the District Court (Fast Track) and Mahila Court, Theni,
dated 07/08/2020 remanding the judgment and decree, dated
05/11/2016 passed in OS No.143 of 2013 by the Sub Court,
Theni.
2.The facts in brief:-
Suit in OS No.143 of 2013 was filed by the first
respondent herein and others against Kaliammal and others
arraying these appellants namely K.Manoharan and
C.Seenivasan as defendants 4 and 6 with the following
averments:-
The suit property originally belonged to one
Sathurappan Maniyam. He had one son by name Ramakrishnan
and daughters namely Ramuthai, Lakshmi and another
Ramuthai. All of them died now. Ramakrishnan had four
children and two daughters namely Ramraj, Surendra
https://www.mhc.tn.gov.in/judis
Gurusamy, Rajendran and Kanagaraj, Amarjothi and
Vijayalakshmi. The elder Ramuthai had two sons namely
Manoharan and Ponraj. The said Lakshmi and another
younger Ramuthai died issueless. Ramraj also died
leaving behind his wife Kaliammal and his daughter by
name Santhi as his legal heirs. Kanagaraj also died
leaving behind his wife Sarswathi and his daughters
namely Anitha and Brinda as his legal heirs. Daughters of
Sathurappan Maniyam were married long back and living
with their family members separately. So, Ramakrishnan
alone is entitled to the share left by Sathurappan
Maniyam. Sathurappan Maniyam died in 1968. From the date
of death of Sathurappan Maniyam, Ramakrishnan and his
family members enjoying the suit properties as absolute
owners. Ramakrishnan died in 1994 and his wife also.
3.The plaintiffs 1, 2, 6 and the 3rd defendant are
entitled to 1/6th share in the suit properties. The
defendants 1 and 2 are entitled to 1/6th share. But the
plaintiffs 3 to 5 are entitled to 1/6th share. Kali Thevar
is the husband of elder Ramuthai and the father of the
defendants 4 and 5 executed two settlement deeds on
30/05/2003 in favour of the defendants 4 and 5 settling
his half share in the properties. Those settlement deeds
are not valid under law. Kali Thevar has no right in the
https://www.mhc.tn.gov.in/judis
properties. The defendants 4 to 6 created a sale deed,
dated 16/06/2003 as if one Ponraj agreed to sell his half
share to Manoharan and Srinivasan. The defendants 4 and 6
filed a suit in OS No.36 of 2008 before the Sub Court,
Periyakulam against the 5th defendant for specific
performance. The suit was decreed on 30/01/2009. EP was
filed in EP No.65 of 2009. Sale deed was obtained on
03/02/2010.
4.With these averments, the suit is filed for
partition, permanent injunction, etc.
5.The defendants 4 and 6 filed statement stating
that the suit property belongs to Kali Thevar
ancestrally. In 1986 during UDR scheme, patta was issued
in favour of Kali Thevar. The plaintiffs had no right in
the properties after the decree in OS No.36 of 2008. The
suit is filed with the connivance of the other
defendants. For more than 27 years, the plaintiffs are
out of possession. The suit is bad for non-joinder of
necessary parties, since the legal heirs of Sathurappan
Maniyan are not added as parties. Similarly, the other
family members are also not added in the plaint.
https://www.mhc.tn.gov.in/judis
6.On the basis of the pleadings, the following
issues were framed by the trial court:-
1.Whether the plaintiffs are
entitled to the relief of partition as
prayed for?
2.Whether the plaintiffs are
entitled to the relief of permanent
injunction as prayed for?
3.Whether the suit is bad for non-
joinder of necessary parties?
4.What other reliefs, the plaintiffs
are entitled to ?
7.Additional issues was framed on 31/08/2016,
whether the suit is barred by limitation?
8.Before the trial court, on the side of the
plaintiffs, 2 witnesses were examined and 8 documents
were marked. On the side of the defendants, one witness
was examined and 8 documents were marked.
9.At the conclusion of the trial process, the trial
court dismissed the suit finding that the plaintiffs
failed to establish the right and title of Sathurappan
Muniyam.
https://www.mhc.tn.gov.in/judis
10.Regarding the Issue No.2, it was found that all
the legal heirs of the Sathurappan Muniyam were not
impleaded as parties in the suit. So, the suit is bad
for non-joinder of necessary parties. The plaintiffs did
not establish the possession for long year of 27. The
suit filed by the plaintiffs is barred by limitation
also.
11.Against which, appeal was preferred by the
plaintiffs before the Fast Track Court, Theni in AS No.40
of 2017. The appellate court differed from the trial
court findings that there was no proper explanation by
the appellants as to how the properties, which were
originally standing in the name of Sathurappan Maniyam
and later, Kali Thevar was issued with patta during UDR
survey. Since Sathurappan Muniyam was issued with
settlement patta, it will have overriding the effect upon
the UDR patta issued in favour of Kali Thevar.
12.Regarding the issue of non-joinder of necessary
parties, the appellate court recorded a finding that the
trial court has correctly found that the suit is bad for
non-joinder of necessary parties.
https://www.mhc.tn.gov.in/judis
13.In the appeal proceedings, the plaintiffs filed a
petition under Order 1 Rule 10 CPC. The appellate court
allowed that application, remitting the matter back to
the trial court for fresh consideration in view of the
development.
14.Against which, this appeal is preferred by the
appellants questioning the order of remand.
15.Heard both sides.
16.A short point for consideration.
The trial court on the basis of the UDR patta
proceedings, dismissed the suit of the plaintiffs, but
the appellate court relied upon the settlement register
namely SLR issued in favour of Sathurappan Maniyam found
that since Sathurappan Muniam was issued with patta
during the settlement proceedings under the Tamil Nadu
Minor Inams (Abolition and Conversion into Ryotwari)
Act, that patta will confer title upon Sathurappan
Maniyam and after his death, his legal heirs. Patta
issued in favour of Kali Thevar, who is the father of the
appellants though conferred patta during the UDR
proceedings, it will not have overriding effect. It
allowed the application filed by the plaintiffs under
https://www.mhc.tn.gov.in/judis
Order 1 Rule 10 CPC to implead all the legal-heirs of
Sathurappan Muniyam, since the suit is filed for
partition. Further particulars with regard to the Interim
Application is not available in the judgment. Now
whatever it may be, that application was also allowed.
When Order 1 Rule 10 CPC application is allowed,
naturally the plaint got to be amended for the parties
impleaded, opportunity must be given to put forth their
plea.
17.Before, we go further, let me extract Order 1
Rule 10(4) CPC hereunder:-
“(4)Where defendant added, plaint to be
amended.-Where a defendant is added, the
plaint shall, unless the Court otherwise
directs, be amended in such manner as may be
necessary, and amended copies of the
summons and of the plaint shall be served on
the new defendant and, if the Court thinks
fit, on the original defendant.”
18.The next course available to the Court is to
permit the plaint to be amended. When the plaint is
amended, as narrated above, notice must be issued to the
https://www.mhc.tn.gov.in/judis
newly added parties and they must be given opportunity to
put forth their plea as mentioned above.
19.Now the question, which arises for consideration
is whether this exercise might have been undertaken by
the appellate court itself.
20.The learned Senior counsel appearing for the
appellants would submit that there is no necessity for
the suit to be remanded back to the trial court. He is
also touching the merits of the matter. That we will
address later.
21.Order 41 Rule 23 CPC reads as follows:-
“23.Remand of case by Appellate
Court.-Where the Court from whose decree an
appeal is preferred has disposed of the
suit upon a preliminary point and the
decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order
remand the case, and may further direct
what issue or issues shall be tried in the
case so remanded, and shall send a copy of
its judgment and order to the Court from
https://www.mhc.tn.gov.in/judis
whose decree the appeal is preferred, which
directions to re-admit the suit under its
original number in the register of civil
suits, and proceed to determine the suit;
and the evidence (if any) recorded during
the original trial shall, subject to all
just exceptions, be evidence during the
trial after remand.
22.Rule Rule 23 CPC is not applicable to the present
matter, since the suit was disposed of on merits.
23.Rule 23(A) CPC reads as follows:-
“23.A.Remand in other cases.-Where
the Court from whose decree an appeal
is preferred has disposed of the case
otherwise than on a preliminary point,
and the decree is reversed in appeal
and a re-trial is considered necessary,
the Appellant Court shall have the same
powers as it has under Rule 23.”
24.Here, the appellate court exercised the power in
remanding the issue, in view of the petition under Order
1 Rule 10 CPC.
https://www.mhc.tn.gov.in/judis
25.Coming to the grievance expressed by the
appellants that the appellate court ought to have taken
the usual course.
26.We will refer the Rule 24 CPC. The Rule 24 also
come to play, since additional pleadings are to be raised
by the parties. On the basis of the pleadings, evidence
must be let. The application under Order 1 Rule 10 CPC
cannot be treated like an application under Order 41 Rule
27 CPC. Only in case of application under Order 41 Rule
27 CPC, the appellate court, instead of remitting the
matter to the trial court, may undertake the exercise of
recording the evidence and dispose the matter as
indicated under Rule 28. Here, such is not the
situation.
27.Now coming to the argument advanced on either
side, the learned Senior counsel appearing for the
appellants would submit that SLR is, dated 11/01/2013 and
only adangal was produced by the plaintiff and there is a
clear finding by the trial court that title was not
proved. But contra is the finding of the appellate court
without any evidence. He would further submit that if
really the suit property belongs to Sathurappan Maniyam,
it would have been subject matter of the partition deed,
https://www.mhc.tn.gov.in/judis
dated 07/11/1988 entered between the childrens of
Sathurappan Maniyam. The xerox copy of the partition
deed is produced by the appellants. But this document was
neither produced before the trial court, nor before the
appellate court. Not even an application under Order 41
Rule 27 is filed by the appellants even before this
court. Without filing all those petitions, straightaway
in the additional type set of documents, this document is
enclosed. Even if we take the document into
consideration, no finding can be recorded by this court
with regard to the title. Proper evidence must be let in
by the parties with regard to this fact. If the evidence
is let in by the parties with regard to this fact, the
appellants can also be benefited. So for their own
benefit, the order of remand ought not to have been
challenged by the appellants. So liberty is granted to
the appellants herein to file proper application before
the trial court itself to lead additional evidence.
28.The next argument is that the appellants having
failed claim petition before the Execution Court, wants
second round of litigation in the form of the suit and
appeal proceedings. I am not touching upon this issue
also, which can be taken into account by the trial court.
Similarly, I am not also touching upon the issue with
regard to the title.
https://www.mhc.tn.gov.in/judis
29.In the light of the above, if any discussion or
observation is made with reference to the title of the
property, of course, which is not required now in this
matter, may cause unnecessary prejudice in the mind of
the parties before the trial court. So, I am consciously
avoiding discussion regarding the title.
30.For all these reasons stated above, I am not
convinced with any of the argument advanced by the
appellants to set aside the order of remand. As mentioned
above, the order of remand can be utilized by the
appellants themselves to their advantage by producing
additional evidence in the form of certified copy of the
partition deed, dated 03/11/1988.
31.So, I find that the order of remand passed by the
appellate court on this aspect cannot be interfered.
Because this exercise cannot be taken by the appellate
court.
32.In the result, the appeal fails and the same is
dismissed. The order of remand is sustained, of course
there shall be a direction to the trial court to permit
the parties to lead additional evidence, after adding new
parties and may decide the matter afresh without being
https://www.mhc.tn.gov.in/judis
influenced by any of the observation made either by it or
by the appellate court or by this court in this matter.
No costs. Consequently connected Miscellaneous Petitions
are closed.
01/08/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Fast Track Court.
Mahila Court,
Theni.
2.The Sub Court,
Theni.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
01/08/2024
https://www.mhc.tn.gov.in/judis
