Madras High Court
Kandasamy vs Ilango ... First on 5 November, 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
S.A.No.538 of 2012 and
M.P.No.1 of 2012
1.Kandasamy
2.Karthikeyan (deceased)
3.Balachandran
4.Devasena
5.Nagavani
6.Gowri
7.Dhanasekaran
8.Rajasekaran
9.Minor Bhargavi
10.Minor Vaishnavi
(Appellants 9 & 10 are represented by their
father Balachandran, the third appellant)
11.Valliammai
12.Tmt.Jayalakshmi
(Appellants 11 and 12 are brought on record as
legal heirs of the deceased A2 vide order dated
29.02.2024 made in M.P.No.1 of 2013)
... Appellants / Defendants
Vs.
1.Ilango ... First Respondent / plaintiff
2.The District Collector,
Villupuram District,
Villupuram.
1/8
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3.The Additional Educational Officer,
Kalakurichi,
Villupuram District.
4.The District Elementary Educational Office,
Villupuram.
5.The Director of Elementary Education,
Chennai. ... Respondents
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree rendered in A.S.No.14 of
2011 dated 25.01.2012 on the file of the learned Sub Court, Kallakurichi,
confirming the judgment and decree rendered in O.S.No.864 of 2006 dated
06.12.2010 by the learned Principal District Munsif, Kallakurichi.
For Appellants : Mr.M.Muruganantham for A1
For Respondents : Mr.P.Valliappan, Senior Counsel for
M/s.S.M.S.Shriram Narayanan for R1
Dr.S.Suriya, AGP for R2 to R5
JUDGMENT
This Second Appeal has been filed to set aside the judgment and
decree rendered in A.S.No.14 of 2011 dated 25.01.2012 on the file of the
learned Sub Court, Kallakurichi, confirming the judgment and decree
rendered in O.S.No.864 of 2006 dated 06.12.2010 by the learned Principal
District Munsif, Kallakurichi.
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2. Heard Mr.M.Muruganantham, learned counsel for the first
appellant, Mr.P.Valliappan, learned Senior Counsel for R1 and Dr.S.Suriya,
learned Additional Government Pleader for R2 to R5 and perused the
materials available on record.
3. The brief facts of the plaint runs as under:
The Appeal has been filed by the defendants against the plaintiff /
first respondent who have filed a suit for partition by claiming 1/4 share in
the suit items 1 to 11 and a scheme decree for the Management of the
School in the suit items 12 to 14 for a periodical rotation among the sharers
and it has been decreed as prayed by the Trial Court. The Appeal preferred
by the defendants before the First Appellate Court was also dismissed
confirming the preliminary decree passed by the Trial Court. The appellants
/ defendants have filed this Appeal by raising the following substantial
questions of law:
"1. Whether the Courts below are right in shifting the
burden of proof on the appellants by observing that it is for
them to prove that the properties in the hands of the first
appellant are the self acquired properties and they were
purchased out of the first appellant's income even when the
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first respondent / plaintiff has not discharged his burden of
proving his entitlement to partition by establishing that the
properties in the hands of the appellants are the joint family
properties.
2. Whether the Courts below are right in ignoring the
well considered findings of the lower court in O.S.No.114 of
2003 dated 21.09.2004 which are not set aside by the lower
appellate court?
3.Whether the permission given in I.A.No.147/06 in
A.S.No.166/04 to the plaintiff / 1st respondent to file a fresh
suit for the same cause of action has liscenced him to file a
fresh suit by ignoring the well considered findings given
against him in O.S.No.114 of 2003.
4.Whether the Courts below are right in rejecting the
plea of the appellants that the present suit is barred by res
judicata and constructive res judicata?
5. Whether the Courts below are right in granting the
decree for partition after 25 years though it is barred by law
of limitation?"
4. Even according to the defendants, they have raised the dispute only
in respect of item Nos.12 to 14 before the Trial Court. But, the draft
substantial question of law is inclusive of all the suit items which is not
correct. Even for the sake of argument, if it is to be seen whether the Courts
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below have shifted the burden on the part of the defendants to prove that the
suit property are the self-acquired property of the defendants, it has to be
noted first that the defendants did not claim that all the suit properties are
self-acquired properties of the first appellant / first defendant.
5. The Trial Court after having made an exhaustive analysis on the
evidence adduced on the side of the plaintiff, has arrived at a conclusion
that there are documents produced to show that the suit items are the joint
family properties, more specifically, suit items 1 to 11. The appellants /
defendants have raised the contention before the Trial Court stating that
there is already an oral partition. When the initial burden upon the plaintiff
is discharged by proving that the suit properties are the joint family
properties, the burden would naturally shift upon the defendants to prove
that there is an oral partition in which the partition has already taken place
or that certain suit items are the self-acquired properties of the first
defendant. So, I do not find any error in understanding the burden of proof
on the parties. Hence, the first substantial question of law will not arise.
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6. The substantial questions of law raised in question Nos.2 to 4 are
one and the same. As regards the fourth question of law whether the
defendants raise the plea of res judicata on the allegation that an earlier suit
has been filed on the same cause of action, the burden would be on the
defendants to show that the cause of action that has arisen in the earlier suit,
the relief sought in the earlier suit and the parties to the earlier suit and the
subject matter of the earlier suit are one and the same.
7. The appellants who are the defendants before the Trial Court have
filed documents Ex.B1 to B36. None of the documents are seen to be the
pleadings and judgments in respect of the earlier suit which the defendants
claim would act as a res judicata for the present suit for partition. Hence, I
do not find any basis to raise the point on res judicata.
8. The fifth question of law is on limitation. This point is being raised
for the first time before the Second Appellate Court. The point on limitation
being both question of law and facts, the appellants / defendants ought to
have raised it before the Trial Court itself. By not raising the said question
before the Trial Court and the First Appellate Court, the appellants appeared
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to have invited the said question for the purpose of Second Appeal, without
any basis. Hence, the fifth question of law also does not arise.
9. In view of the above stated reasons, this Second Appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
Speaking order / Non-speaking order 05.11.2024
Index : Yes / No
Neutral Citation : Yes / No
gsk
To
1.The Sub Court,
Kallakurichi.
2.The Principal District Munsif,
Kallakurichi.
3.The District Collector,
Villupuram District,
Villupuram.
4.The Additional Educational Officer,
Kalakurichi,
Villupuram District.
5.The District Elementary Educational Office,
Villupuram.
6.The Director of Elementary Education,
Chennai.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
gsk
S.A.No.538 of 2012 and
05.11.2024
https://www.mhc.tn.gov.in/judis
