Madras High Court
Vibhishnan (Died) vs Thangavel on 28 March, 2025
S.A.(MD).No.751 of 2007 and batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2025
CORAM
THE HON'BLE MR.JUSTICE G.ILANGOVAN
S.A.(MD).No.751 of 2007, C.R.P.(MD).No.603 of 2005
C.M.P.(MD).Nos.12296 and 12181 of 2022 and C.M.P.
(MD).Nos.SR75552 and SR75558 of 2022 in S.A.(MD).No.751 of
2007, C.R.P.(MD).No.603 of 2005
S.A.(MD).No.751 of 2007
1.Vibhishnan (Died)
2.Kulandaiyammal
3.C.Vasuki
4.S.Nirmala
5.M.Manjula
6.T.Vijayalakshmi @ Pappaathi ... Appellants 1 to 6
/ Appellants 1 & 4 to 8/
3rd Defendant & LRs. of D4
7.Nallusamy ... 7th Appellant
(7th appellant brought on record as legal heir of the deceased 1 st
appellant vide order dated 28.08.2014 made in M.P.(MD).Nos.1 to 6 of
2014 in S.A.(MD).No.751 of 2007)
Vs.
1.Thangavel
2.Murugesan (Died)
3.Vasanthamani
4.Senapathi
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S.A.(MD).No.751 of 2007 and batch
5.Ramayi
6.Krishnaveni
7.Valarasi
8.Chandrakantha
9.Palaaru ... Respondents 1 to 9/
Respondents 1, 3, 5 to 7, 9 to 11
and 3rd appellant/Plaintiff and
Respondents 2, 7 to 9, 11 to 13 & 5
10.P.Suresh ... 10th Respondent
(10th Respondent impleaded as party respondent vide order dated
16.08.2013 made in M.P.(MD).No.1 of 2012 in S.A.(MD).No.751 of
2007)
11.Suseela
12.Karthick ... Respondents 11 & 12
(Respondents 11 & 12 were impleaded as Lrs of the deceased 2nd
respondent vide order dated 28.08.2014 made in M.P.(MD).Nos.1 to 6
of 2014 in S.A.(MD).No.751 of 2007)
PRAYER in S.A.(MD).No.751 of 2007: Second Appeal filed under
Section 100 of the Civil Procedure Code, against the Judgment and
Decree of the learned District Judge, Karur, dated 24.11.2006 in A.S.No.
143 of 2005 confirming the Judgment and decree of the learned
Subordinate Judge, Karur, dated 25.03.1999 in I.A.No.932 of 1994 in
O.S.No.628 of 1979.
For Appellants : Mr.S.Srinivasa Raghavan
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S.A.(MD).No.751 of 2007 and batch
For Respondents : Mr.M.C.Swamy for R1
Mr.M.P.Senthil for R3 to R5
Mr.R.Devaraj for R6 to R8
Mr.P.Thiagarajan for R11 & 12
Mr.S.Ram Sundar Vijayaraj for R10
R2 – Died
C.M.P.(MD).Nos. 12296 of 2022 and SR75552 of 2022 in S.A.
(MD).No.751 of 2007
1.Vibhishnan (Died)
2.Kulandaiyammal
3.C.Vasuki
4.S.Nirmala
5.M.Manjula
6.T.Vijayalakshmi @ Pappaathi
7.Nallusamy (Died) ... Petitioners/Appellants
in both petitions
8.Rajamani
9.Malathi
10.Ashok
11.Senthamil Selvan ... Petitioners 8 to 11 in
C.M.P.(MD).No.12296 of 2022
(Petitioners 8 to 11 are brought on record as Lrs. Of the deceased 7 th
petitioner vide Court order dated 17.03.2025 made in C.M.P.(MD).Nos.
4640 and 4641 of 2025 in C.M.P.(MD).No.12296 of 2022 in S.A.
(MD).No.751 of 2007)
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S.A.(MD).No.751 of 2007 and batch
Vs.
1.Thangavel
2.Murugesan (Died)
3.Vasanthamani
4.Senapathi
5.Ramayi
6.Krishnaveni
7.Valarasi
8.Chandrakantha
9.Palaaru
10.P.Suresh
11.Suseela
12.Karthick ... Respondents/Respondents
in both petitions
PRAYER in C.M.P.(MD).No. 12296 of 2022: Civil Miscellaneous
Petition is filed under Section 5 of the Limitation Act, to condone the
delay of 38 days in filing petition to set aside the order of dismissed for
default, dated 23.09.2022 in S.A.(MD)No.751 of 2007 on the file of this
Court.
PRAYER in C.M.P.(MD).No.SR75552 of 2022: Civil Miscellaneous
Petition is filed under Order 41 Rule 9 of C.P.C., to set aside the order,
dated 23.09.2022 in S.A.(MD)No.751 of 2007 on the file of this Court.
For Petitioners : Mr.S.Srinivasa Raghavan
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S.A.(MD).No.751 of 2007 and batch
For Respondents : Mr.M.C.Swamy for R1
Mr.M.P.Senthil for R3 to R5
Mr.R.Devaraj for R6 to R8
Mr.P.Thiagarajan for R11 & 12
Mr.S.Ram Sundar Vijayaraj for R10
R2 – Died
(in Both petitions)
C.R.P.(MD).No.603 of 2005
1.Vibhishnan (Died)
2.M.Palaru
3.Kulandai Ammal
4.C.Vasuki
5.M.Manjula
6.T.Vijayalakshmi @ Pappaathi ... Petitioners 1 to 6
/ Respondents 2, 4, 12, 13, 15 & 16/
3rd Defendant/3rd Parties
7.Nallusamy ... 7th petitioner
(7th appellant brought on record as legal heir of the deceased 1 st
appellant vide order dated 20.04.2016 made in C.M.P.(MD).Nos.2053 to
2055 of 2016 in C.R.P.(MD).No.603 of 2005)
Vs.
1.Murugesan (Died)
2.Thangavel
3.Vasanthamani
4.Senaathipathi
5.Raamaaye
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S.A.(MD).No.751 of 2007 and batch
6.Soundaram
7.Krishnaveni
8.Valarasi
9.Chandrakantha
10.Nirmala ... Respondents 1 to 10/Petitioners,
Respondents 1, 5 to 11 & 14/ 2nd Defendant, Plaintiff
& 3rd Parties
11.Suseela
12.Karthick ... Respondents 11 & 12
(Respondents 11 & 12 were impleaded as Lrs of the deceased 1sr
respondent vide order dated 20.06.2016 made in C.M.P.(MD).Nos.2056
to 2059 of 2016 in C.R.P.(MD).No.603 of 2005)
PRAYER in C.R.P.(MD).No.603 of 2005: Civil Revision Petition filed
under Section 115 of Code of Civil Procedure to set aside the fair and
decretal order dated 22.02.2005 in E.P.No.137 of 2004 in O.S.No.628 of
1979 on the file of the Principal District Munsif Court, Karur.
For Petitioners : Mr.S.Srinivasa Raghavan
For Respondents : Mr.M.C.Swamy for R2
Mr.P.Thiagarajan for R12
For RR8, 9 10 and 11 – No Appearance
RR3 to 5 & 8 – Exparte
RR1 & 6 – Died
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S.A.(MD).No.751 of 2007 and batch
C.M.P.(MD).Nos. 12181 of 2022 and SR75558 of 2022 in C.R.P.
(MD).No.603 of 2005
1.Vibhishnan (Died)
2.M.Palaru
3.Kulandai Ammal
4.C.Vasuki
5.M.Manjula
6.T.Vijayalakshmi @ Pappaathi
7.Nallusamy ... Petitioners 2 to 7
/ Revision Petitioners 2 to 7
8.Rajamani
9.Malathi
10.Ashok
11.Senthamil Selvan ... Petitioners 8 to 11 in
C.M.P.(MD).No.12181 of 2022
(Petitioners 8 to 11 are brought on record as Lrs. Of the deceased 7 th
petitioner vide Court order dated 17.03.2025 made in C.M.P.(MD).Nos.
4642 and 4644 of 2025 in C.M.P.(MD).No.12181 of 2022 in C.R.P.
(MD).No.603 of 2005)
Vs.
1.Murugesan (Died)
2.Thangavel
3.Vasanthamani
4.Senaathipathi
5.Raamaaye
6.Soundaram
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S.A.(MD).No.751 of 2007 and batch
7.Krishnaveni
8.Valarasi
9.Chandrakantha
10.Nirmala
11.Suseela
12.Karthick ... Respondents/Respondents
PRAYER in C.M.P.(MD).No. 12181 of 2022: Civil Miscellaneous
Petition is filed under Section 5 of the Limitation Act, to condone the
delay of 38 days in filing petition to set aside the order of dismissed for
default, dated 23.09.2022 in C.R.P.(MD)No.603 of 2005 on the file of
this Court.
PRAYER in C.M.P.(MD).No.SR75558 of 2022: Civil Miscellaneous
Petition is filed under Order 9 Rule 9 of C.P.C., to set aside the order,
dated 23.09.2022 in C.R.P.(MD)No.603 of 2005 on the file of this
Court.
For Petitioners : Mr.S.Srinivasa Raghavan
For Respondents : Mr.M.C.Swamy for R2
Mr.P.Thiagarajan for R12
For RR8, 9 10 and 11 – No Appearance
RR3 to 5 & 8 – Exparte
RR1 & 6 – Died
(in both petitions)
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S.A.(MD).No.751 of 2007 and batch
COMMON JUDGMENT
Second appeal is filed against the Judgment and Decree of the
learned District Judge, Karur, dated 24.11.2006 in A.S.No.143 of 2005
confirming the Judgment and decree of the learned Subordinate Judge,
Karur, dated 25.03.1999 in I.A.No.932 of 1994 in O.S.No.628 of 1979.
Civil Revision Petition is filed to set aside the fair and decretal
order dated 22.02.2005 in E.P.No.137 of 2004 in O.S.No.628 of 1979 on
the file of the Principal District Munsif Court, Karur.
C.M.P.(MD).Nos.12296 and 12181 of 2022, are filed to condone
the delay of 38 days caused in filing the restoration petition to restore the
above said second appeal and civil revision petitions respectively, which
were already dismissed for default by this Court.
C.M.P.(MD).Nos.SR75552 and SR 75558 are filed to restore the
above said second appeal and civil revision petitions respectively, which
were already dismissed for default by this Court.
2.The facts in brief:
Suit in O.S.No.628 of 1979 was filed by the plaintiff for partition
and separate possession before the Sub Court, Karur. Preliminary decree
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S.A.(MD).No.751 of 2007 and batch
for partition was passed on 11.10.1982, in respect of the plaintiffs 1/3rd
share in 'A' schedule property. In respect of 'B' schedule the suit was
dismissed holding that it is a lease hold property.
3.The defendants 3 and 4, who are the purchasers from the first
defendant pending the suit. Along with the main defendants 1 and 2 filed
A.S.No.880 of 1992 before this Court. It was dismissed on 13.08.1993
confirming the judgment and decree passed by the trial Court.
4.Later, final decree application in I.A.No.932 of 1994 was filed
before the Sub Court, Karur on 15.12.1994. During the pendency of the
first appeal the first defendant died. Legal heirs of the first defendants
were impleaded in the final decree application. Advocate Commissioner
was appointed. On the basis of his recommendation final decree was
passed on 25.03.1999. To execute the decree the plaintiff filed E.P.No.
137 of 2004 before the trial Court. Before that the order passed in
I.A.No.932 of 1994, was challenged in A.S.No.143 of 2005 before the
District Court, Karur. Later on 22.02.2005 in E.P delivery was ordered
to be effected. A.S.No.143 of 2005 was dismissed on 24.11.2006. The
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S.A.(MD).No.751 of 2007 and batch
present second appeal is preferred challenging the appeal judgment.
Simultaneously, C.R.P.(MD).No.603 of 2005 is filed challenging the
order passed in E.P proceedings.
5.By the Administrative order both the second appeal as well as
the civil revision petition are tagged together and listed.
6.Later both second appeal and the civil revision petition came to
be dismissed for default. To restore the same the C.M.P.
(MD).Nos.SR75552 and SR75558 of 2022 have been filed. In filing the
above said applications there is a delay of 38 days caused. To condone
the above said delay, C.M.P.(MD).Nos.12296 and 12181 of 2022 have
been filed. At the time of hearing the above said condone delay
applications, this Court made it clear to the petitioner counsel that unless
they come prepared for the arguments in the main second appeal and
civil revision petition, these petitions will not be entertained. On that
ground both sides Advocates came prepared and argued the main matter
itself. In view of the same, this Court is inclined to allow all the above
said four applications.
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S.A.(MD).No.751 of 2007 and batch
7.Accordingly, C.M.P.(MD).Nos.12296 and 12181 of 2022 are
hereby allowed. The delay is condoned. Subsequently, the restoration
applications namely C.M.P.(MD).Nos.SR75552 and SR75558 of 2022
are also hereby allowed in the SR stage itself. Pursuant to that the
second appeal namely S.A.(MD).No.751 of 2007 and civil revision
petition namely C.R.P.(MD).No.603 of 2005 are hereby restored to
the file and the following common order is passed in both the
matters.
8.In respect of the second appeal, at the time of admission, the
following substantial question of law has been framed.
1. Whether the Court below have not misdirected themselves and
have not acted contrary to the specific directions of the Hon'ble
High Court in A.S.No.880 of 1982 in removing A schedule 3rd item
out of consideration and directing that the same be sold
separately by auction without allotting the third share therein as
well in equity to the appellants as directed by the Honourable
High Court, Madras?
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S.A.(MD).No.751 of 2007 and batch
2. Whether, in equity, the appellants are not entitled to claim
allotment of the extent of Acres 4.15 purchased by them with
irrigation rights as bonafide purchasers for value?
9.At the time of hearing the learned counsel for the
appellant/revision petitioner made a simple and practical plea stating that
pending all these proceedings Government acquired land in the subject
properties by way of proceedings under the provisions of Land
Acquisition Act. In the final decree, the Commissioner has not
mentioned any subdivisions. Because the subdivisions were effected only
subsequent to the Land acquisition proceedings taken by the
Government. Since because the Government is not in position to
ascertain the ownership of the property acquired, they deposited Rs.
60,00,000/- (Rupees Sixty Lakhs only). It lies in the custody of the
concerned Court. So he would submit that in order to render a finality to
the issue between the parties, the matter may be remitted back to the trial
Court to ascertain the above said issue.
10.For which, the learned counsel for the respondent would submit
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S.A.(MD).No.751 of 2007 and batch
that it is a long drawn process of litigation between the parties. Litigation
which started in the year 1979 could not be completed till now because
of unreasonable objections made by the appellant. He would further
submit that he has no objection in remanding the matter back to the
Execution Court in stead of re-opening the final decree passed, with a
direction to ascertain the portion of the land acquired by the Government
and the party to whom that acquired portion was allotted in the final
decree may be permitted to withdraw the amount lying in the Court
deposit.
11.So after hearing both sides, I am of the considered view that
this will be the proper course that can be taken by this court to resolve
the issue finally. If it is left open to be decided in a separate proceedings,
then, the ultimate sufferer will be the Decree holder because of the delay.
12.Now, it has been submitted before the Court that even though
delivery was ordered as per the final decree, it could not effected due to
the pendency of these proceedings. Since the issue is narrowed down to a
simple practical point, I am of the considered view that the final decree
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S.A.(MD).No.751 of 2007 and batch
passed by the trial Court requires no interference. It was also submitted
by both sides that in respect of house property, it is ordered to be
auctioned, because of the indivisible nature of the same. Now the
respondent purchased the property and deposited the remaining share
amount of other parties, they have also withdrawn the same.
13.So the second appeal is liable to be dismissed stating that no
substantial question of law arises in the factual circumstances of the case.
Accordingly, the S.A.(MD).No.751 of 2007 is hereby dismissed and
the final decree passed by the trial Court stands confirmed. No costs.
14.Regarding the civil revision petition, it can be disposed of by
remitting the matter back to the execution Court. Accordingly, the civil
revision petition in C.R.P.(MD).No.603 of 2005 is disposed of. The
matter is remitted back to the Execution Court, with a direction to reissue
the Commissioner warrant to the very same Commissioner, if available
and if not to a new Commissioner with a direction to ascertain the
subdivisions available on the land with reference to the final decree.
After ascertaining the subdivisions and also ascertaining the portion of
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S.A.(MD).No.751 of 2007 and batch
the property acquired by the Government, right may be granted to that
person to whom that portion was allotted for withdrawing the amount
lying in the Court deposit. Thereafter, delivery process may be
undertaken. Considering the oldness of the matter, let the delivery
process be completed within a period of three months from the date of
filing of the Commissioner's Report. The entire fees for the
Commissioner must be borne by the revision petitioner. It is made clear
that the parties are not permitted to re-agitate the matter on any account.
No costs.
28.03.2025
Index : Yes / No
Internet : Yes / No
TM
To
1.The District Judge, Karur.
2.The Subordinate Judge, Karur.
3.The Principal District Munsif, Karur.
4.The Section Officer,
E.R.Section/V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD).No.751 of 2007 and batch
G.ILANGOVAN,J.
TM
S.A.(MD).No.751 of 2007 and Batch
28.03.2025
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