[Cites 11, Cited by 0]
Madras High Court
Rethnadhas vs Ramadhas(Died) on 30 April, 2026
S.A.(MD)No.379 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.03.2026
DELIVERED ON : 30.04.2026
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
S.A.(MD)No.379 of 2017
and
C.M.P.(MD)No.8069 of 2017
1.Rethnadhas
2.Sylus
3.Jebamani
4.Gnanaselvam
5.Ambi
6.Abraham
7.Christhudhas
8.Beula
9.Mary
10.Jose
11.Amala Pushpam
12.Baby ... Appellants
Vs.
1.Ramadhas (Died)
2.Baby (Died)
3.Lalitha
4.Mohandhas
1/29
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S.A.(MD)No.379 of 2017
5.Krishnadhas
6.Vijayakumari
7.Sunil Kumar
8.Sugin Kumar
9.Suma
10.Sreemathy
11.Kiji Thilakavathy
12.Mahesh Ram
13.Priyadhnya ... Respondents
[Respondents 10 to 12 are brought on record as legal heirs of the
deceased 1st respondent vide court order dated 04.01.2024 made in
C.M.P.(MD)Nos.3189, 3190 and 3191 of 2023 in S.A.(MD)No.379 of
2017]
[13th respondent is brought on record as legal heir of the deceased
2nd respondent vide court order dated 04.01.2024 made in C.M.P.
(MD)Nos.3193, 3194 and 3195 of 2023 in S.A.(MD)No.379 of 2017]
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code, praying to allow the Second Appeal and set aside
the judgment and decree in A.S.No.68 of 2011 dated 03.02.2017,
on the file of the Sub Court, Kuzhithurai, reversing the judgment
and decree in O.S.No.14 of 2008 dated 13.12.2010, on the file of
the 1st Additional District Munsif Court, Kuzhithurai.
2/29
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S.A.(MD)No.379 of 2017
For Appellants : Mr.C.Godwin
For Respondents 3 to 9 : Mr.S.Meenakshi Sundaram,
Senior Counsel
for Mr.N.Ka.Natraj
For Respondents 10 to 13 : No appearance
JUDGMENT
Defendants 2 to 13, aggrieved by the reversal findings
rendered by the Subordinate Judge, Kuzhithurai, in A.S.No.68 of
2011 dated 03.02.2017, setting aside the judgment and decree in
O.S.No.14 of 2008 dated 13.12.2010, on the file of the First
Additional District Munsif Court, Kuzhithurai, are the appellants
herein.
2.The above Second Appeal was admitted by this court on
30th August 2017, on the following substantial questions of law:
“1.Whether the observation made in Ex.A.
7 confer fresh cause of action to file O.S.No.14
of 2008?
2.Whether the suit is barred by limitation
in view of the final decree passed in I.A.No.925
of 1978, dated 22.03.1983 and parties have
taken delivery of their respective share?
3.Whether the Court has got power to
grant leave to file fresh suit dehors Order 23
C.P.C?
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4.Whether the suit is barred by Order 2
Rule 2 in view of Ex.A.8 judgment?”
3.I have heard Mr.C.Godwin, learned Counsel for the
appellants and Mr.S.Meenakshi Sundaram, learned Senior Counsel
for Mr.N.Ga.Nataraj, learned Counsel for the respondents.
4.The brief facts that are necessary for a decision in the
above Second Appeal are as follows:
4.1.The plaintiffs are the legal heirs of Ponnumani Nadar and
Janaki. The plaintiffs sought for partition and separate possession
of 22 cents, claiming right under exhibits A.1, A.3 and A.5 between
the years 1965 and 1967. The case of the plaintiffs is that the
property was purchased from defendants 50 to 53 in an earlier
litigation in O.S.No.161 of 1962. The defendants in the present suit,
who are the appellants in this Second Appeal are none else than
the legal heirs of defendants 50 to 53 in O.S.No.161 of 1962.
4.2.O.S.No.161 of 1962, was disposed of, with no share being
allotted to Ponnumani Nadar and Janaki. Ponnumani Nadar filed an
appeal in A.S.No.165 of 1983, before the Subordinate Court,
Kuzhithurai. Pending the said appeal, two suits came to be filed,
one for permanent injunction and the other for declaration. O.S.No.
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332 of 1989, was filed by Ponnumani Nadar, seeking an injunction
to restrain the appellants from taking delivery of a property in
terms of the decree in O.S.No.161 of 1962 and another suit in O.S.
No.336 of 1980. O.S.No.51 of 1990, was filed by Janaki, wife of
Ponnumani Nadar for declaration. Both the suits were however,
dismissed by the trial court. The dismissal of the two suits was
brought to the notice of the Appellate Court in A.S.No.165 of 1983,
the appeal filed by Ponnumani Nadar, challenging the decree in
O.S.No.161 of 1962.
4.3.The appeal in A.S.No.165 of 1983, was however,
dismissed on 28.08.1991. Thereafter, the plaintiffs filed the present
suit in O.S.No.14 of 2008 on 02.12.2008, claiming that the
Appellate Court in A.S.No.165 of 1983, had given them liberty to
sue for partition and thus, the suit came to be filed. The suit was
resisted by the defendants, contending that there was no such
liberty granted by the Appellate Court; the suit was hopelessly
barred by limitation; the suit was also barred under the provisions
of Order II Rule 2 of the Code of Civil Procedure. The trial court
after full enquiry, found the suit to be barred by res judicata, in
view of the findings rendered in O.S.No.161 of 1962 and confirmed
in A.S.No.165 of 1983.
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4.4.The plaintiffs, aggrieved by the dismissal of the suit,
preferred A.S.No.68 of 2011, before the Subordinate Court,
Kuzhithurai. The First Appellate Court, finding that the suit for
partition was maintainable and cannot be barred under Order II
Rule 2 of CPC, decreed the suit by allowing the First Appeal. It is as
against the said reversal findings, that the defendants have come
up by way of this Second Appeal.
5.Arguments of Mr.C.Godwin, Learned Counsel
appearing for the appellants:
5.1.The learned Counsel, Mr.C.Godwin, at the outset, would
state that even though the plaintiffs' predecessor in interest,
Ponnumani Nadar and Janaki had purchased 22 cents from the
defendants 50 to 53 in O.S.No.161 of 1962, they were also parties
to the suit and in fact Ponnumani Nadar, himself was the 33 rd
defendant and no share was allotted to Ponnumani Nadar and
Janaki and on the contrary, the appellants having been allotted
specific shares, they had filed E.P.No.173 of 1991 and had also
obtained delivery of the property as early as on 14.11.1991. It is
also the contention of Mr.C.Godwin, that the defendants had filed a
suit in O.S.No.336 of 1980 as well, for redemption of mortgage
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which had been created in favor of Ponnumani Nadar, and even in
the said suit, a preliminary decree and final decree were passed
and the defendants obtained delivery of the property as early as on
09.06.1989, from Ponnumani Nadar.
5.2.It is therefore, the submission of Mr.C.Godwin, that when
no share was allotted in favor of the plaintiffs and the two suits that
were filed by Ponnumani Nadar and Janaki, were also dismissed
and thereafter, A.S.No.165 of 1983 was also dismissed on the
ground of res judicata, the respondents cannot claim benefit of a
stray observation in the judgment of the First Appellant Court,
entitling them to seek for partition of the said 22 cents.
Mr.C.Godwin, learned Counsel for the appellants, would further
state that the common judgment in O.S.No.332 of 1989 and O.S.No.
51 of 1990, which are the suits filed by Ponnumani Nadar and
Janaki, was exhibited as Ex.A.8 and the judgment in A.S.No.165 of
1983 was also exhibited as Ex.A.7.
5.3.He would refer to the findings of the trial court that the
plaintiffs, namely Ponnumani Nadar and Janaki, were not in
possession of the suit property, which is 22 cents. Referring to the
observation made by the First Appellant Court in Ex.A.7 judgment,
Mr.C.Godwin, would contend that the same will not confer cause of
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action or jurisdiction for filing of a fresh suit for partition. In this
regard, he would emphasize the mandate of Order 23 Rule 2 of
CPC. It is therefore, his submission that when no leave has been
granted as required or contemplated under Order 23, the fresh suit
for partition was clearly barred by the principle of res judicata,
and hit by the provisions of Order 23 Rule 2 of CPC as well.
5.4.Pointing out to the reasons for dismissal of A.S.No.165 of
1983, Mr.C.Godwin, would further contend that the appeal was
rejected only on the grounds of res judicata, as the very same issue
of entitlement of Ponnumani Nadar had been gone into in the two
suits in O.S.No.332 of 1989 and O.S.No.51 of 1990 and further
holding that the case pleaded by Ponnumani Nadar as 33rd
defendant was also held to be barred by res judicata, in view of the
decree in O.S.No.161 of 1962. He would therefore, state that when
the Appellate Court had dismissed the appeal, despite an
observation regarding the entitlement of 22 cents to the plaintiffs
Ponnumani Nadar and Janaki, the observation cannot be construed
as liberty granted to them for filing a fresh suit. It is also his
submission that, even assuming liberty had been granted without
admitting, the appeal suit was disposed of on 28.08.1991 and the
respondents / plaintiffs slept over the matter for 17 years before
seeking partition in O.S.No.14 of 2008. Therefore, even on this
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ground, he would contend that the suit was clearly not
maintainable.
5.5.As an alternate argument, he would also state that even
assuming the plaintiffs were entitled to the 22 cents, the
defendants having taken possession of the property in E.P.No.173
of 1991 in O.S.No.161 of 1962, as early as on 14.11.1991 and have
been in possession and enjoyment ever since and the appellants
have prescribed title by adverse possession as well. Learned
Counsel, therefore, prays for the Second Appeal being allowed.
6.Arguments of Mr.S.Meenakshi Sundaram, learned
Counsel appearing for the respondents:
6.1.Mr.S.Meenakshi Sundaram, learned Senior Counsel
appearing for the respondents would refer to the observations
made by the First Appellate Court in A.S.No.165 of 1983, that “,e;j
nky;KiwaPl;lhsh; 50 Kjy; 53 gpujpthjpfSf;F xJf;fg;gl;l 39.760
brz;L epyj;jpypUe;J jdf;F ghj;jpag;gl;l 12 brz;L epyj;ij gphpj;J
thq;fpf; brhs;s ntz;Lk;” and would state that the said observation
would clearly amount to a liberty being granted by the First
Appellate Court and therefore, the suit for partition cannot be bad
on the ground of a res judicata. Mr.S.Meenakshi Sundaram, learned
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Senior Counsel, would also contend that the suit being one for
partition, the question of limitation does not arise and since the
cause of action is a continuous cause of action and taking me
through various litigations between the parties, the learned Senior
Counsel would contend that the plaintiffs have never abandoned
their entitlement or right and have been agitating the same before
various Courts of law. He would therefore, state that even on the
grounds of limitation, the suit cannot be held to be not
maintainable.
6.2.As regards res judicata as well, it is the contention of the
learned Senior Counsel that, no doubt Ponnumani Nadar had filed a
suit for injunction in O.S.No.332 of 1989, but however, it was a
relief that was wrongly sought for and therefore, res judicata
cannot be pressed into service. In any event, it is the submission of
Mr.S.Meenakshi Sundaram, learned Senior Counsel, that the relief
is not the same and cause of action is also entirely different and the
purchase made by the plaintiffs in Exhibits A.5 and A.6 were not
even discussed in Exhibit A.7 judgment [A.S.No.165 of 1983] and
therefore, the question of applying the principle of res judicata,
cannot even arise.
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6.3.As regards Order II Rule 2 of CPC, Mr.S.Meenakshi
Sundaram, learned Senior Counsel, states that the defendants have
not been able to establish that both suits arise from the same cause
of action and that they are between the same parties and further
requirement is that the earliest suit having been decided on merits
and therefore, learned Senior Counsel contends that the question
of applying the provisions of Order II Rule 2 of CPC, also does not
arise.
6.4.As regards adverse possession, Mr.S.Meenakshi
Sundaram, learned Senior Counsel, states that even if the Courts
have found that the plaintiffs Ponnumani Nadar and Janaki were
not in actual possession, based on Exhibits A.1 to A.6, it has to be
held that they were in constructive possession along with the
appellants. In this regard, he states that the decision of the
Appellate Court, granting liberty was on 28.08.1991 and in the
meantime two suits have been filed by Ponnumani Nadar and
Janaki. The said suits came to be disposed of only on 26.04.2006
and within two years thereafter, the present suit for partition has
been filed. Learned Senior Counsel, therefore contends that the
plaintiffs have not kept quiet or lost their rights and they have been
continuously agitating / litigating before the Courts of law and
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hence, the question of adverse possession also will not arise,
especially, when the defendants claim that their possession is
adverse from 14.11.1991, when possession was taken under Exhibit
B.1.
6.5.As regards Order 23 of CPC, Mr.S.Meenakshi Sundaram,
learned Senior Counsel would contend that the object of Order 23
is to prevent the defeat of justice on technical grounds alone and
the cause of action being recurring in nature, even if the plaintiff is
not granted permission under Order 23 Rule 1 of CPC, his right to
seek for partition can never be thrown out. He would also point out
to the reasoning of the trial court for dismissing the suits filed by
Ponnumani Nadar and Janaki in O.S.No.332 of 1989 and O.S.No.51
of 1990, on the grounds that they have not proceeded to take
advantage of the liberty granted in A.S.No.165 of 1983, to claim
their entitlement of 22 cents.
6.6.In support of his submissions, Mr.S.Meenakshi Sundaram,
has relied on the following decisions:
1) Thilagavathi alias Thilagam Vs. V.Samiappan,
reported in 2014 (2) MWN (Civil) 479;
2) Chenniappan Vs. Valliammal, reported in 2020 5 MLJ
537;
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3) Muthulakshmi Ammal Vs. Kannaian, reported in 2023
Supreme (Online) (MAD) 30801;
4) Selvaraj Vs. Mariammal, reported in 2025 Supreme
(Online) (Mad) 56940;
5) R.Thirumoorthy Vs. K.Poovathal, reported in 2025
Supreme (Online) (Mad) 67490;
6) Bengal Waterproof Limited Vs. Bombay Waterproof
Manufacturing Company and another, reported in (1997) 1
SCC 99;
7) S.Ramasamy Vs. S.Subramanian, reported in 2013 (4)
CTC 710;
8) Rajah Vs. Rajeswara Rao, reported in 1966 Supreme
(Mad) 319;
9) Sengoda Gounder (Deceased) & others Vs.
N.M.Murugesan & others, reported in 2013 (2) MWN (Civil)
7. have carefully considered the submissions advanced by the
learned Counsel on either side.
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ANALYSIS:
8.The Second Appeal throws up some interesting questions of
law. At the same time, it remains to be seen if the said questions of
law are substantial in nature, entitling intervention by this Court
under Section 100 of CPC. It is not in dispute that the respondents /
plaintiffs claim under Ponnumani Nadar and Janaki and the
appellants / defendants claim under their vendors, i.e., the
plaintiffs' vendors, who were the defendants 50 to 53 in O.S.No.161
of 1962.
9.One Sabarimuthu Nadar was entitled to an extent of
approximately 40 cents [39.760 cents] in Old S.Nos.1162, 1164 and
1175, new R.S.No.513. The said 40 cents was allotted to four heirs
of Sabarimuthu Nadar, namely Enose Nadar [10 cents], Asari
Nadar [10 cents], Thomas Nadar [10 cents] and Mosai Nadar [10
cents]. Under Exhibit A.6, 10 cents was purchased by Janaki from
Enose Nadar. Ponmunnada Nadar purchased 6 cents out of 10
cents from Asari Nadar under the sale deed dated 15.05.1967.
Ponnumani Nadar purchased another 6 cents from Mosai Nadar
under Exhibit A.4, under registered sale deed dated 19.11.1966. It
is therefore, the contention of the plaintiffs that 22 cents out of the
total 40 cents [approximately] had been acquired by Ponnumani
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Nadar and his wife Janaki. Thomas Nadar as well as Mosai Nadar
died as bachelors and hence, the entire 10 cents of Thomas Nadar
and remaining 4 cents of Mosai Nadar devolved upon their two
brothers, Enose Nada and Asari Nadar.
10.A suit was filed in O.S.No.161 of 1962. Ponnumani Nadar
was a party to the said suit. Ponnumani Nadar was in fact, the 33 rd
defendant in the said suit in O.S.No.161 of 1962 and he claimed his
entire entitlement of 12 cents in the final decree proceedings in
O.S.No.161 of 1962. However, the claim of Ponnumani Nadar was
rejected and Plot No.34, which is the suit property was allotted to
defendants 50 to 53 in the said suit in O.S.No.161 of 1962. No
doubt, Ponnumani Nadar challenged the decree by filing A.S.No.
165 of 1983. In the meantime, Ponnumani Nadar filed a suit for
injunction in O.S.No.332 of 1989 and his wife Janaki filed a suit in
O.S.No.51 of 1990, to declare her entire entitlement of 10 cents.
Both the suits were dismissed by a common judgment dated
26.04.2006, which was brought to the notice of the Appellate
Court. In fact, it was observed by the Trial Court in the said
common judgment that the plaintiffs had failed to work out the
remedy in terms of the direction in A.S.No.165 of 1983.
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11.I have already extracted the debated observation of the
First Appellate Court. It remains to be seen if the said observation
of the First Appellate Court would amount to any liberty granted to
Ponnumani Nadar and Janaki, to file a suit for partition and claim
their entitlement and whether such observation or liberty satisfies
the mandate of Order 23 of the Code of Civil Procedure. It is
however, to be borne in mind that despite such observations, the
legality of which will be discussed later, the appeal suit was
ultimately dismissed, finding that a denial of relief to Ponnumani
Nadar in O.S.No.161 of 1962, did not warrant interference. The
Appellate Court fell back on the principles of res judicata. It is also
an admitted fact that Ponnumani Nadar, unsuccessfully challenged
the dismissal of A.S.No.165 of 1983, in Second Appeal as well,
before this court.
12.It is not in dispute that Plot No.34 which comprises of 22
cents claimed by the plaintiffs herein was handed over to Enose
Nadar and Asari Nadar in final decree proceedings on 14.11.1991.
The first plaintiff Janaki, was in fact, a party to the final decree
proceedings as well. Therefore, the decree in O.S.No.161 of 1962
has become final and it will certainly bind the legal heirs of
Ponnumani Nadar and Janaki. Order 23 Rule 1 of CPC, permits the
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plaintiff, at any time after the institution of the suit, to abandon the
suit or part of the claim and if the Court is satisfied that the suit
fails by reason of a formal defect or there are sufficient grounds to
allow the plaintiff to institute a fresh suit for the subject matter of
the suit or part of a claim, then the Court, on such terms, as it
thinks fit, may grant permission to the plaintiff to withdraw from
the suit or such part of the claim with liberty to institute a fresh
suit in respect of the subject matter of such suit or part of the
claim.
13.Admittedly, there is no application made by the plaintiffs
Ponnumani Nadar and Janaki, to institute a fresh suit based on the
same cause of action. No doubt, the Appellate Court in A.S.No.165
of 1983, had made a passing observation that the plaintiffs can get
their share of 22 cents from defendants 50 to 53. The appeal itself
was challenging the denial of the entitlement of Ponnumani Nadar
in O.S.No.161 of 1962 and the suit itself was one for partition,
where the subject property was allotted to defendants 50 to 53. In
such circumstances, if really the Appellate Court had intended to
entitle the plaintiffs to claim the share of 22 cents, the Appellate
Court itself could have modified the judgment of the Trial Court,
suitably and granted a decree then and there. On the contrary,
despite such observation, ultimately the First Appellate Court has
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dismissed the Appeal, confirming the findings of the Trial Court,
clearly holding that the claim made by Ponnumani Nadar was
barred by the principles of res judicata.
14.In such circumstances, I am unable to countenance the
arguments on behalf of the respondents that the suit being only one
for partition, there can be no limitation put against the plaintiffs
and that the cause of action is a continuing one and the plaintiffs
are deemed to be in constructive possession. All these arguments
raised can only be rejected. The entitlement of Ponnumani Nadar
was negatived in O.S.No.161 of 1962. The challenge to the same in
A.S.No.165 of 1983 and thereafter, Second Appeal were admittedly
unsuccessful. Therefore, it is not open to the plaintiffs to take
advantage of a stray observation made by the First Appellate Court
in A.S.No.165 of 1983 and file a suit for partition, seeking the very
same entitlement of 12 cents of Ponnumani Nadar and 10 of his
wife Janaki. In fact, as rightly pointed out by Mr.C.Godwin, A.S.No.
165 of 1983, was dismissed only on the ground of res judicata,
finding that the claim to share had been already dealt with in
earlier proceedings. In such view of the matter, I am unable to
accept the findings of the First Appellate Court that the judgment
in A.S.No.165 of 1983, would provide a fresh cause of action to the
respondents to seek for partition.
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15.As already discussed, no leave has been granted under
Order 23 as well and in the event of the argument of the
respondents are to be considered also, if the observation had
amounted to a liberty, then the appeal should have been suitably
disposed of, granting specific permission to file a fresh suit on the
same cause of action or touching the subject matter of the suit or
part of the claim. As already seen from the above discussions,
A.S.No.165 of 1983, was in fact, dismissed on merits and therefore,
the arguments that the suit is one for partition and there is no
limitation and no liberty is required under Order 23 of CPC, do not
merit consideration before this court.
16.Coming to the issue of limitation as well, Article 65 of the
Limitation Act is pressed into service by the appellants. It is
however, contended by the learned Senior Counsel that since the
suit is one for partition and in exhibit A.7, judgment in A.S.No.165
of 1983, the right of Ponnumani Nadar and Janaki, to 22 cents was
upheld. The question of limitation does not arise, as the legal heirs
of Ponnumani Nadar and Janaki are deemed to be in joint and
constructive possession along with the other co-owners, namely
defendants 50 to 53 and their legal heirs. The fact remains that the
suit for partition in O.S.No.161 of 1962, did not carve out any share
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to Ponnumani Nadar or his wife Janaki. On the contrary, the suit
property was allotted to defendants 50 to 53 in the said suit and
they have also taken possession of the same, way back in their
1991 suit. This factum was not disputed by the respondents /
plaintiffs as well.
17.The subsequent litigation at the hands of Ponnumani
Nadar and Janaki, also being unsuccessful and touching the very
same subject matter, it does not lie in the mouth of the plaintiffs to
contend that after possession was taken by defendants 50 to 53 on
14.11.1991 in E.P.No.173 of 1991, the said defendants took
possession including constructive and joint possession of
Ponnumani Nadar and Janaki. Such an argument cannot be
sustained at all, for the simple reason that even in O.S.No.161 of
1962, the entitlement of Ponnumani Nadar was not recognized. On
the contrary, the suit property was allotted to defendants 50 to 53
alone. The suit, therefore, should have been filed at least after
possession was taken in E.P.No.173 of 1991. Admittedly, the
present suit has been filed after a lapse of 17 years after the said
date, in the year 2008 alone. In such circumstances, even applying
Article 65 of the Limitation Act, the suit is hopelessly barred by
limitation.
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18.Coming to adverse possession, it is contended by the
appellants that the appellants have perfected their rights, having
taken possession even on 14.11.1991, in view of the fact that even
prior to the Execution Petition being filed in 1991, suits came to be
filed by Ponnumani Nadar and Janaki in O.S.Nos.332 of 1989 and
51 of 1990, which suits were ultimately disposed of, only on
26.04.2006, and thereafter, the present suit for partition has also
been filed. Therefore, it cannot be said that the appellants have
perfected their right by adverse possession by being in continuous,
open and hostile possession and enjoyment of the suit property for
over the statutory period of 12 years. Hence, I am unable to accept
the argument advanced by the learned Counsel for the appellants
with regard to the applicability of adverse possession to come to
the aid of the appellants.
19.Coming to the decisions that have been relied on by the
learned Senior Counsel appearing for the respondents, in
Thilagavathi's case, this court applied Section 14 of the Limitation
Act and excluded time spent by the plaintiff in pursuing a counter-
claim in an earlier suit. The facts of this case were on an entirely
different contextual matter altogether. Plaintiff therein had filed a
counter-claim, bonafidely, which came to be overturned in Second
Appeal, that too, on technical grounds. In such circumstances,
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liberty was granted. Section 14 of the Limitation Act was applied
and period spent in pursuing the counter-claim was excluded while
calculating period of limitation. I do not see how this decision will
be of any application to the facts of the present case, which have
already been elaborately discussed above.
20.In Chenniappan's case, this court held that ouster must
be proved by strong evidence and when there is no evidence to
establish possession of the properties at the hands of the first
defendant in the said suit to the exclusion of his sisters, then mere
fact that the first defendant had effected improvements would not
be sufficient to prove ouster. I am unable to see how this decision
again will have any application to the facts of the present case. I
have not applied the principle of ouster at all and in fact, the plea
of adverse possession has also been negatived.
21.In Muthulakshmi Ammal's case, again, this court dealt
only with ouster in the case of a co-owner. This decision again has
no application.
22.In Selvaraj's case and Thirumoorthy's case as well,
ouster law has been dealt with. I do not see any of these decisions
could therefore be applied to the facts of the present case.
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23.In Bengal Waterproof's case, the Hon'ble Supreme
Court dealt with the provisions of Order II Rule 2 of CPC, where
the Hon'ble Supreme Court held that the plea of bar under Order II
Rule 2 of CPC can be maintained only when the defendant files
before the Trial Court, pleadings in the previous suit, to prove
identity of cause of action in the two cases and inference about the
bar cannot be culled out merely from the plaint in the second case.
Though in the present case, the pleadings in the earlier suit have
admittedly not been filed, it is not in dispute that the entitlement of
22 cents was subject matter of the earlier suit as well as the
present suit for partition. Therefore, though it was argued by
Mr.S.Meenakshi Sundaram learned Senior Counsel that the cause
of action for this suit is entirely different, the very same cause of
action was in fact taken up even in O.S.No.165 of 1962 and
ultimately, Ponnumani Nadar was unsuccessful. Ponnumani Nadar
and his wife Janaki, in fact, chose to file only a suit for bare
injunction, despite the observation, which according to him,
permitted him to file a suit for partition. Similarly, his wife Janaki
filed a comprehensive suit for declaration to claim her right for 10
cents. Both suits have admittedly been dismissed after elaborate
trial.
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24.In Ramasamy's case, this Court held that the cause of
action for the partition suit is a continuing one and bar of Order II
Rule 2 of CPC, will not apply to a suit for partition. I have no
quarrel with regard to the proposition that the cause of action for
a partition suit is continuous and neither limitation nor bar of Order
II Rule 2 of CPC can be made applicable to a partition suit.
However, in the facts of the present case, the very same issue of
entitlement of Ponnumani Nadar to 12 cents, was a specific issue
framed in O.S.No.161 of 1962 and it was held against Ponnumani
Nadar. The challenge to the same by way of First Appeal and
Second Appeal were also admittedly unsuccessful. In such
circumstances, to contend that fresh suit for partition taking
advantage of an observation made by the Appellate Court in A.S.
165 of 1983, would revive the claim of the plaintiffs cannot be
acceptable. This decision also, therefore, cannot be applied to the
facts of the present case.
25.Coming to the next decision on which reliance has been
placed by the learned Senior Counsel for the respondents, in the
decision of this Court in Raja Vs. Rajeswara Rao's case, this
Court held that even when the plaintiff is not granted permission
under Order 23 Rule 1 of C.P.C., right to file a suit for partition at
any time he pleases, in view of his obvious right be always
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available. However, in the facts of the present case, when in a suit
for partition, the claim of Ponnumani Nadar has been negatived
and subsequently, the claim of his wife Janaki for declaration of her
entitlement of 10 cents was also negatived, it cannot be contended
that Order 23 would not be a bar or it would not come in the way
for filing a suit for partition. Therefore, in view of the peculiar facts
of this case, this decision is also of no avail to the respondents.
26.Coming to the last decision relied on by the learned
Senior Counsel for the respondents in Sengoda Gounder's case,
this court held that when plaintiffs are purchasers from decree
holders in an earlier suit for partition, they step into the shoes of
their vendor and they are entitled to execute the decree obtained
by their vendor and continue proceedings for partition. So, I am
unable to see how this decision can come to the rescue of the
respondents. In the present facts, the entitlement of the purchasers
in interest of the plaintiffs was negatived and there was no decree
granted, unlike in the facts of Sengoda Gounder's case. This
decision is again not applicable to the facts of the present case.
27.In view of the above discussion and for all the above
reasons, the substantial questions of law are answered in the
following manner:
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Question of Law No.1:
The observations in Exhibit A.7, cannot and do not confer
fresh cause of action for filing a suit for partition.
Question of Law No.2:
Suit filed for partition in 2008, after final decree was passed
in I.A.No.925 of 1978 on 22.03.1983 and possession was also
delivered on 14.11.1991, is clearly barred by limitation.
Question of Law No.3:
The Court does not have power to grant leave to file a fresh
suit, dehors Order 23 of CPC and in any event, I have already held
that the observation made by the Appellate Court in Ex.A.7 would
not tantamount to grant of leave in the first place.
Question of Law No.4:
It is now settled law that unless the Trial Court before whom
the plea of Order II Rule 2 bar is taken, the pleadings in the earlier
suit are filed to establish that the earlier suit and the present suit
are based on the very same cause of action, then alone the court
can take cognizance of the plea of Order II Rule 2 of CPC.
Admittedly, in the present case, excepting for judgment in Exhibit
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A.8, the pleadings in the earlier suit have not been filed. Even
though, this Court, from Exhibit A.8 judgment can make out the
case of the parties to the said case, it would not be proper and in
the interest of justice, to go by the brief summary made by the
Court in the said judgment, without noticing the actual pleadings of
the parties, especially the cause of action, to invoke the bar of
Order II Rule 2 of CPC. Therefore, Question of Law No.4 is
answered against the appellants and in favour of the respondents.
28.For all the above reasons and in fine, the appellants are
entitled to succeed and the Second Appeal is allowed. The
judgment and decree of the First Appellate Court in A.S.No.68 of
2011 dated 03.02.2017, on the file of the Sub-Court, Kuzhithurai, is
set aside and the judgment and decree of the Trial Court in O.S.No.
14 of 2008 dated 13.12.2010, on the file of the 1 st Additional
District Munsif Court, Kuzhithurai is restored. There shall be no
order as to costs. Consequently, the connected miscellaneous
petition is closed.
30.04.2026
Index : Yes / No
Internet : Yes / No
MR
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To
1.The Subordinate Judge,
Kuzhithurai.
2.The 1st Additional District Munsif,
Kuzhithurai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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P.B.BALAJI, J.
MR
PRE-DELIVERY JUDGMENT MADE IN
30.04.2026
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