Madras High Court
V.Kalusivalingam vs V.Lakshmanan on 27 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD)No.179 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.179 of 2023
and
C.M.P.(MD)No.10099 of 2023
and
C.M.P.(MD)No.18772 of 2024
V.Kalusivalingam ... Appellant
Vs.
V.Lakshmanan ... Respondent
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to
set aside the judgment and decree dated 31.01.2023 passed in O.S.No.7
of 2016 on the file of the Additional District Court, Virudhunagar and
allow this appeal with costs.
For Appellant : Mr.V.Kalusivalingam,
Party-in-person.
For Respondent : No appearance
1/9
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A.S.(MD)No.179 of 2023
JUDGMENT
V.Kalusivalingam and V.Lakshmanan are brothers. Lakshmanan
filed O.S.No.7 of 2016 on the file of the Additional District Court,
Virudhunagar seeking half share in “B” schedule property. The “B”
schedule property is a marriage hall. It had been constructed on “A”
schedule land. The “A” schedule land is a consolidation of as many as
six parcels of land purchased under Exs.A1 to A6. The plaintiff also
sought rendition of accounts in respect of “B” schedule property. He
also sought permanent injunction against the defendant to restrain him
from evicting him except by due process of law.
2.Kalusivalingam filed written statement contending that “A”
schedule lands as well as “B” schedule marriage hall were put up only by
deploying his funds. During the relevant period, Kalusivalingam was
employed in Highways department and with the money sent by him, his
father had purchased the property. The specific stand of Kalusivalingam
is that the plaintiff / Lakshmanan did not make any financial contribution
for purchasing the land or for the construction of the marriage hall. He
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would also add that the dyeing unit, which is also located in a portion of
the schedule property, stands in the name of his wife. That itself would
indicate that it does not belong to the plaintiff.
3.Based on the rival pleadings, the Court below framed the
following issues:-
“Issues framed in O.S.No.7 of 2016:
(1) Whether the plaintiff is entitled to get a preliminary
decree for partition and separate possession of half share in the
'B' schedule property, shown as ABCDFGHIJKA in the plaint
plan?
(2) Whether the plaintiff is entitled to get a direction,
directing the defendant to render accounts of the Marriage Hall,
situate in the suit property, from May, 2014?
(3) Whether the plaintiff is entitled to get a permanent
injunction restraining the defendant from evicting the plaintiff
from the suit dyeing unit, shown as BCDE in the plaint plan,
except under due process of law?
(4) Whether the plaintiff is entitled to get a permanent
injunction restraining the defendant from altering the name,
Velusamy-Packialakshmi Pavalavizh Arangam, of the Marriage
Hall into other names?
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(5) What other reliefs is the plaintiff entitled to?
Issues framed in counter claim in O.S.No.7 of 2016:
(1) Whether the counter claimant/defendant is entitled to
get a declaration that the 'B' schedule property, shown as
ABCDFGHIJKA in the plaint plan, belongs to him exclusively?
(2) Whether the counter claimant/defendant is entitled to
get a mandatory injunction directing the counteclaim
respondent/plaintiff to hand over to the counter
claimant/defendant such original sale deeds (382/09.02.1998,
383/09.02.1998, 2726/04.09.1998, 1992/03.07.1998,
2222/14.07.1998, 2661/25.08.1999) as are referable to the suit
property?
(3) Whether the counter claimant/defendant is entitled to
get a mandatory injunction directing the counterclaim
respondent/plaintiff to hand over to the counter
claimant/defendant the vacant possession of the property, shown
as BCDE in the plaint plan?
(4) Whether the relief of mandatory injunction, instead of
recovery of possession with respect to the property shown as
BCDE in the plaint plan?
(5) What other reliefs is the counter claimant/defendant
entitled to?”
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4.V.Lakshmanan examined himself as P.W.1 and one P.Mathavan
was examined as P.W.2 and Exs.A1 to A19 were marked.
V.Kalusivalingam examined himself as D.W.1 and one P.Rameshkumar
was examined as D.W.2 and Exs.B1 to B12 were marked. Court
documents as well as third party documents were also marked.
5.It is relevant to note that Kalusivalingam raised counter claim.
Vide common judgment and decree dated 31.01.2023, the trial Court
decreed the suit in the following terms:-
“(1) The suit is decreed by passing preliminary decree for
partition of ½ share of the plaintiff in plaint 'B' schedule
property.
(2) The preliminary decree is passed for rendition of
accounts of marriage hall in 'B' schedule property Velusamy-
Packialakshmi Pavalavizha Arangam. The defendant is directed
to render accounts within two months of the date of decree.
(3) The defendant is restrained by an order of injunction
not to evict the plaintiff from 'B' schedule dyeing unit till the final
decree passed.
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(4) The defendant is restrained by an order of injunction
not to change the name of marriage hall from Velusamy-
Packialakshmi Pavalavizha Arangam.
(5) The counterclaim is dismissed
(6) Considering the facts of the case, the parties are
directed to bear the own costs.
(7) Suit is adjourned to 27.04.2023 for drafting final
decree. The plaintiff entitled to file necessary application for
drafting final decree.”
The counter claim filed by the defendant was dismissed. Aggrieved by
the same, the defendant filed A.S.(MD)No.170 of 2023.
6.The defendant appeared in person. We asked the defendant as to
whether only he has filed only one appeal or he has filed two appeals.
The appellant submitted that he had filed only one appeal.
7.When he had filed a counter claim and by a separate decree, the
counter claim was dismissed, the defendant was obliged to file two
appeals. As a result of his failure to do so, the principle of res judicata
will kick in.
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8.Even on merits, the appellant does not have a case. “A” schedule
parcels of lands were purchased vide Exs.A1 to A6. It is not in dispute
that all the six sale deeds stand in the joint names of Kalusivalingam and
Lakshmanan. Therefore, the trial Court rightly decreed the suit as prayed
for.
9.In this appeal, an interim order was granted on 31.01.2025. The
said interim order will continue till the final decree proceedings are
concluded.
10.With the aforesaid observation, this appeal is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
(G.R.S. J.,) & (M.J.R. J.,)
27.03.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
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To:
The Additional District Court,
Virudhunagar.
Copy to:
The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
ias
27.03.2025
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