Madras High Court
Karuppasamy vs Chinnakannal @ Karuppathal on 9 September, 2024
C.R.P.(PD).No.3587 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3587 of 2024
and C.M.P.No.19449 of 2024
Karuppasamy .. Petitioner
Versus
Chinnakannal @ Karuppathal .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and final order passed in I.A.No.1 of 2023 of
O.S.No.103 of 2023, dated 08.04.2024 by the I Additional Subordinate
Court of Coimbatore and to allow this Civil Revision.
For Petitioner : Mr.M.Saravanakumar
ORDER
This Civil Revision Petition arises against the order passed by the
learned I Additional Subordinate Judge, Coimbatore in I.A.No.1 of 2023 in
O.S.No.103 of 2023, dated 08.04.2024.
2. O.S.No.103 of 2023 is a suit for partition and for declaration that
the sale deed, executed by one Dhakshanamoorthy and others in favour of
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the petitioner/fifth defendant, is null and void and does not bind the 1/3rd
share of the respondent/plaintiff.
3. The case of the respondent/plaintiff is that a large extent of
property, including the suit schedule property, was allotted to one Marappa
Gounder. The respondent/plaintiff, who is the wife of Ayee Gounder, was
born to Marappa Gounder. Marappa Gounder had three children namely,
the respondent/plaintiff, Pappal @ Sivagami @ Sivathal/the first defendant
and one Kuppathal. Marappa Gounder passed away on 01.11.1985. He
died intestate. Kuppathal passed away on 02.03.2000 and she left behind
Sridevi, Thilagamani and Ramasamy @ Chinniya Gounder as her legal
heirs. The plaint proceeds that the respondent/plaintiff and her son,
Ganeshamoorthy and daughter, Bhuvaneshwari, along with the first
defendant, Pappal @ Sivagami @ Sivathal and her daughter, Loganayagi,
with the legal heirs of Kuppathal namely, the defendant Nos.2 to 4 had
alienated an extent of 69 cents in survey No.795/1 in favour of one
V.Mohankumar and C.Vanitha. She would plead that in November, 2022,
when they applied for an Encumbrance Certificate, they came to know that
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the civil revision petitioner/fifth defendant had created a document over the
suit property. Immediately, she presented the suit for the aforesaid reliefs.
4. On service of summons, the civil revision petitioner/fifth defendant
took out an application for rejection of plaint. He would plead that the
document executed by the respondent/plaintiff and others in favour of
V.Mohankumar and C.Vanitha is to an extent of 69 cents in survey
No.795/1, but, contrary to the same, the respondent/plaintiff would plead
that she had retained 66 cents in 795/1F. He would plead that since there is
a difference in the extent that is claimed by the respondent/plaintiff, the
plaint has to be rejected. In addition, he would plead that no patta had been
produced by the respondent/plaintiff to substantiate her case.
5. The learned Judge, after receiving a counter from the
respondent/plaintiff, came to a conclusion that the plea that was raised by
the civil revision petitioner/fifth defendant is a matter which has to be gone
into at the time of trial and therefore, dismissed the petition. Hence, this
Revision.
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6. Heard Mr.M.Saravanakumar, learned Counsel for the civil revision
petitioner.
7. Mr.M.Saravanakumar would submit that, as per the plaint
document No.3, which he has placed for my perusal, the respondent/plaintiff
has alienated the entire extent in S.F.No.795/1F and they are not entitled to
raise a plea regarding the 66 cents purchased by the civil revision
petitioner/fifth defendant. He would state that the civil revision
petitioner/fifth defendant is a bonafide purchaser of the property from a co-
sharer namely, Sennimalai Gounder, who was also allotted a share being the
legal heir of Chinnakaruppa Gounder and therefore, the claim filed after a
period of 38 years is not maintainable. In order to substantiate his case, he
would refer to a judgment of the Supreme Court in Ramisetty Venkatanna
and Anr. Vs. Nasyam Jamal Saheb and Ors., in Civil Appeal No.2717 of
2023, dated 28.04.2023.
8. I have carefully considered the arguments of Mr.M.Saravanakumar
and have gone through the authority cited by him.
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9. The fundamental principle governing rejection of plaints is that I
have to read the plaint and find out if it states any cause of action or whether
it is barred by any of the provisions of law. At that time, I am not entitled to
look into the defence that has been or will be raised by the defendants. It is
only the plaint and the plaint documents alone which decide the fate of the
application. In the present case, a reading of the plaint shows that it is the
specific case of the respondent/plaintiff that the suit schedule mentioned
property came to Marappa Gounder on 16.12.1943. Marappa Gounder died
"intestate", leaving behind him his legal heirs to succeed to the estate. In
the exercise of their right of ownership, the plaint proceeds that they had
alienated an extent of 69 cents of the property retaining the remaining
portion.
10. According to the respondent/plaintiff, the civil revision
petitioner/fifth defendant had created a document over the property through
Sennimalai Gounder, who has no right over the same. If I have to accept the
argument of Mr.M.Saravanakumar that Sennimalai Gounder is the owner
and not Marappa Gounder, I would exceed the scope of Order VII Rule 11
of the Code of Civil Procedure. The question, whether Marappaa Gounder
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is the rightful owner or Sennimalai Gounder is the owner is a matter which
has to be decided only after trial.
11. Insofar as the judgment referred to by Mr.M.Saravanakumar is
concerned, it is factually different from the one that I am dealing with. In
that particular case, the respondent had accepted that their predecessor in
title had obtained the property by way of a partition deed, dated 11.03.1953
and had also been benefited with one acre of land under the said document.
The plea that they had raised in the suit was that the survey number given in
the partition deed was erroneous, and hence, they presented the suit. The
Supreme Court held that having obtained the benefit under the partition
deed, the respondent cannot plead against the said document. On the
contrary, in the facts of the present case, the categorical plea of the
respondent/plaintiff is that the property came to Marappa Gounder alone
and not to any other person. This is a simple suit for partition based on
succession and hence, the judgment of the Supreme Court is inapplicable to
the facts of the present case.
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12. Leaving it open to the civil revision petitioner/fifth defendant to
raise all such defence as is available to him at the time of trial, this Civil
Revision Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
09.09.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The I Additional Subordinate Court,
Coimbatore.
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V.LAKSHMINARAYANAN, J.
grs
09.09.2024
https://www.mhc.tn.gov.in/judis
