Madras High Court
S.Selvaraj vs / on 7 January, 2025
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.137 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.01.2025
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.137 of 2015
and
M.P.(MD)No.2 of 2015
1.S.Selvaraj
2.S.Samuel ... Appellants
/Vs./
1.T.Vasantha
2.T.Swamidasan
3.T.Isravel
4.T.Ponthangarathinam
5.T.Megala
6.R.Kovilpitchai Nadar
7.Y.Mosses (Died)
8.M.Jeyaraj
9.M.Azaiya
10.M.Salwin
11.M.Gnanraj
12.M.Yobhuraj
13.G.Glory
14.N.Jeyakumar ...Respondents
(Cause title amended, vide Court order, dated 10.06.2016, made
in CMP(MD)No.2281 of 2016 in SA(MD)No.137 of 2015)
(Cause title accepted, vide Court order, dated 07.11.2016, made
in MP(MD)No.3 of 2015 in SA(MD)No.137 of 2015)
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1/7
S.A.(MD).No.137 of 2015
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and Decree dated 05.09.2012, made in A.S.No.35 of 2009
on the file of the Principal Sub Court, Tirunelveli, confirming the Judgment and
Decree, dated 18.02.2009, made in O.S.No.508 of 2004 on the file of the II
Additional District Munsif Court, Tirunelveli.
For Appellants : Mr.Ananth C.Rajesh
For R1, R2, R4 and R5: Mr.V.Kannan
For R3 : No appearance
For R6 : No appearance
R7 : Died
For R8 to R14 : No appearance
*****
JUDGMENT
The present appeal is preferred by the plaintiffs in the suit against the
judgment and decree dated 05.09.2012, passed in A.S.No.35 of 2009 on the file of
the Principal Sub Court, Tirunelveli, confirming the judgment and decree, dated
18.02.2009, passed in O.S.No.508 of 2004 on the file of the II Additional District
Munsif Court, Tirunelveli.
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2. The plaintiffs in the suit are the appellants herein and the defendants in
the suit are the respondents herein. For the sake of convenience, the parties are
referred as plaintiffs and defendants as per the ranking in the suit.
3. The suit is filed for partition. The Trial Court has considered the plea and
has dismissed the suit on the ground of non-joinder of necessary parties and for
not including all the properties for partition.
4. In the appeal suit, the plaintiff has rectified the mistake of not impleading
the necessary parties, whereby all the parties were impleaded in the appellate
stage. However, again the plea of not including the other properties was
considered by the Appellate Court and the appeal was dismissed. Aggrieved over
the same, the present second appal is preferred by the plaintiffs.
5. The contention of the plaintiffs is that at the appellate stage all the
necessary parties were impleaded, therefore the appeal ought to have been heard
on merits. But the contention of the respondents is that still all the parties are not
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impleaded.
6. The next contention of the plaintiffs is that the properties available for
partition as far as to his knowledge are mentioned in the suit. But the respondents
6 and 7 submitted that still some of the properties are not included. However, the
Learned Counsel appearing for respondents 1, 2, 4 and 5 vehemently opposed the
said plea stating that the other properties are their personal properties acquired by
the 1st respondent's husband. This Court is of the considered opinion that the said
contention ought to be considered and tested before the Trial Court.
7. Therefore, this Court is of the considered opinion that the suit cannot be
dismissed since the parties are entitled to partition, hence the proper remedy
would be to remit the case back to the Trial Court with a direction to implead the
necessary parties and to include all the properties and consider the partition as per
law.
8. Both the plaintiffs and the defendants are at liberty to implead all the
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necessary parties to the suit. As well as the plaintiffs and the defendants are at
liberty to include all the properties available for partition. If some of the
properties are self-acquired, then the party raising the said plea ought to prove the
same by raising the plea with proof. The parties are at liberty to raise additional
pleadings and to produce documents / evidence to substantiate their claims. All
the defences are open to all the parties.
9. The judgment and decree passed by both the Courts are set aside and the
case is remitted back to the Trial Court. The suit shall be completed by the Trial
Court within a period of one year from the date of receipt of a copy of this
judgment. All the parties are restrained from alienating the properties until the
disposal of the suit. If the parties are in possession of the property, the possession
shall not be disturbed until the disposal of the suit. The original documents filed
in M.P.(MD)No.2 of 2015 shall be returned to the appellants.
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10. With the above said observations, the second appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
07.01.2025
Index : Yes / No
NCC : Yes / No
Tmg
TO:
1. Principal Sub Court, Tirunelveli.
2. II Additional District Munsif Court,
Tirunelveli.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
07.01.2025
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