Madras High Court
S.Velu Alias Velappan vs E.Subbiah Konar (Died) on 29 August, 2025
S.A.(MD) No.586 & 587 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.08.2025
CORAM:
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
S.A.(MD) Nos.586 & 587 of 2020
and
C.M.P.(MD)No.6281 of 2020
S.Velu Alias Velappan
S/o.Late.Solaikonar, North Acharajakapatty,
Balakrishnapuram Village, Dindigul Taluk,
Dindigul District.
... Appellant/Appellant / Plaintiff
in both Second Appeals
Vs.
1. E.Subbiah Konar (Died)
S/o.Late.Elumalai Konar,
Acharajakapatty,
Balakrishnapuram Village,
Dindigul District.
... 1st Respondent / 1st Respondent/
1st Defendant in SA(MD)No.586/2020
2. E.Muniappan (Died)
S/o.Late.Elumalai Konar, North
Acharajakappatti, Balakrishnapuram Village,
Dindigul East Taluk, Dindigul District.
... 2nd Respondent / 2nd Respondent /
2nd Defendant in SA(MD)No.586/2020
and
... Respondent / Respondent/Defendant
in SA(MD)No.587/2020
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S.A.(MD) No.586 & 587 of 2020
3. Kalaiselvi,
W/o. Late
E. Muniappan,
D.No. 4/93, Lakshmi Nagar,
Near N.S. Nagar Bus Stop, Karur Road,
Dindigul - 624 001.
4. Arunkumar,
S/o. Late E. Muniappan,
D.No.4/93, Lakshmi Nagar,
Near N.S. Nagar Bus Stop, Karur Road,
Dindigul - 624 001.
5. Dharma,
S/o. Late E. Muniappan, D.No. 4/93, Lakshmi
Nagar, Near N.S. Nagar Bus Stop, Karur Road,
Dindigul - 624 001.
R3 to 5 are Brought on Record as LRs
vide Court order dated 08.02.2021 made in
CMP(MD)Nos.772-774 & 776-778/2021)
... Respondents 3 to 5 in SA(MD)No.586/2020 and
Respondents 2 to 4 in SA(MD)No.587/2020.
PRAYER in SA(M)DNo.586/2020: Second Appeal filed 100 of under
Section Civil Procedure Code to call for the records and set aside the
judgment and decree dated 23.04.2019 in AS No.42 of 2016 on the file
of the Mahila Fast Track Court Dindigul confirming the judgment and
decree dated 21.03.2016 in OS No.460 of 2013 Additional Sub Court
Dindigul and allow this Second Appeal with costs throughout.
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S.A.(MD) No.586 & 587 of 2020
PRAYER in SA(MD)No.587/2020: Second Appeal filed 100 of under
Section Civil Procedure Code to call for the records and set aside the
judgment and decree dated 23.04.2019 in AS No.43 of 2016 on the file
of the Mahila Fast Track Court Dindigul confirming the judgment and
decree dated 21.03.2016 in OS No.218 of 2009 Additional Sub Court
Dindigul and allow this Second Appeal with costs throughout.
PRAYER in CMP:
To stay all further proceedings pursuant to judgment and
decree dated 23.04.019 in A.S.No.43 of 2016 on the file of the Mahila
Fast Track court, Dindigul, confirming the judgment and decree dated
21.03.2016 in O.S.No.218 of 2009 on the file of the Additional Sub
Court, Dindigul, pending disposal of this Second Appeal and pass such
other suitable orders and thereby render justice.
APPEARANCE OF PARTIES:
For Appellant : Mr.H.Lakshmi Shankar, Advocate
For Respondent : Mr.M.P.Senthil, Advocate
COMMON JUDGMENT
Heard.
2. These Second Appeals have been filed by the plaintiff in
O.S. No. 460 of 2013 and the defendant in O.S. No. 218 of 2009,
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S.A.(MD) No.586 & 587 of 2020
assailing the common judgment and decree rendered by the Mahila Fast
Track Court, Dindigul, in A.S. Nos. 42 and 43 of 2016.
3. For the sake of convenience, the parties would be referred
to as per their ranks before the trial Court.
4. Both appeals are interconnected and were heard together.
The plaintiff in O.S. No. 460 of 2013 instituted a suit for partition in
respect of eight items of properties. Although presented as a partition
suit, the relief sought in relation to Item No. 1 of the schedule property
was framed in a distinct manner. Ordinarily, in a partition suit, the court
determines the entitlement of the parties, fixes their respective shares,
and passes a preliminary decree. In the present case, however, the
plaintiff specifically prayed for the allotment of 12 cents on the
southern side of Item No. 1, after deducting 28 cents out of the total 40
cents. The trial court, upon detailed consideration, correctly held that
such a relief, though couched in the form of partition, is in substance
one for declaration. Consequently, the claim for partition in respect of
Item No. 1 is unsustainable.
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S.A.(MD) No.586 & 587 of 2020
5. With respect to Items 2 to 4, it is undisputed that these
properties were sold by Sonaimalai to the defendants’ father, Elumalai,
under Ex.B5, the sale deed dated 24.06.1947. Consequently, the claim
for partition in respect of Items 2 to 4 is untenable. In regard to Items 5
and 6, the plaintiffs failed to prove the very existence of such
properties. As for Items 7 and 8, they consist of a well and a sand-pit,
which are indivisible by nature and, therefore, not amenable to
partition.
6. The appellant’s contention that all the joint family
properties, except the house property, continued to remain joint and
were only tentatively divided for convenience is not supported by the
conduct of the parties. On the contrary, the evidence points otherwise:
Sonamalai executed Ex.B5 sale deed in favour of Elumalai; the plaintiff
executed Ex.B1 in favour of Sethuramalingam and Ex.B3 in favour of
Thiruniraiselvi; and the defendants executed a sale deed dated
29.04.2005 in favour of their sister Revathi. These transactions clearly
demonstrate that the parties were independently dealing with the
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S.A.(MD) No.586 & 587 of 2020
properties, indicating that a partition had already been effected between
Sonamalai and Elumalai by metes and bounds, and that, in respect of
the properties allotted to Elumalai, a further partition was effected
between Elumalai and the defendants under Ex.B11 dated 26.02.1998.
Accordingly, the present suit for partition is not maintainable.
7. Insofar as the relief of declaration and recovery of
possession is concerned, the dispute pertains to S.No.571/3B. The
defendants contend that the entire 80 cents in this survey number fell to
the share of Elumalai and, under the registered partition deed dated
26.02.1998 (Ex.B11), the northern 40 cents were allotted to Munisamy
and the southern 40 cents to Subbiah. Upon appreciation of evidence,
both the courts below concluded that the plaintiff has no right over
S.No.571/3B. The plaintiff’s claim, in fact, relates to S.No.571/3A3,
which lies between S.No.566 and S.No.571/3B, and not in S.No.571/3B
. The sale of 20 cents effected by the plaintiff pertains to the northern
side of property in S.No.571/3B, comprised within S.No.566. Both
courts concurrently found that the plaintiff had encroached upon the 2nd
defendant’s property and, accordingly, ordered eviction.
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S.A.(MD) No.586 & 587 of 2020
8. Notably, at the stage of admission of this second appeal, an
Advocate Commissioner was appointed to inspect S.No.571/3B. In his
report, the Commissioner categorically confirmed that no sub-division
bearing S.No.571/3A3 exists within S.No.571/3. This finding reinforces
the concurrent conclusions of the courts below. In such circumstances,
no substantial question of law arises.
9. Accordingly, as no substantial question of law arises within
the meaning of Section 100 CPC, these Second Appeals are dismissed
at the stage of admission itself. There shall be no order as to costs.
Consequently, all connected civil miscellaneous petition is closed.
Speaking : Yes / No 29.08.2025
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
LS
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S.A.(MD) No.586 & 587 of 2020
Copy to:
1.The Mahila Fast Track Court,
Dindigul
2.The Additional Sub Court,
Dindigul
3.The Section Officer
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.586 & 587 of 2020
DR.A.D.MARIA CLETE, J.
LS
S.A.(MD) No.586 & 587 of 2020
29.08.2025
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