The Madras High Court dismissed the second appeal by the plaintiffs against lower court decrees. The court found no error in the dismissal of the partition suit, holding that the plaintiffs failed to prove their title and that earlier decrees were not conclusive without a final decree, especially given prior alienations.
The appeal was dismissed with no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
Second Appeal No.557 of 2018 and C.M.P.No.16669 of 2018
Orders reserved on 20.09.2018 Orders pronounced on 08.10.2018
1.Kamala 2.Parimala .. Appellants/Plaintiffs
vs. Parvathi (Died) 1.Ramar 2.Krishnan 3.Eswaran 4.Muthuvel 5.Krishnaveni 6.Tamilselvi 7.Rajamanickam 8.Govindan 9.Indira .. Respondents
Appeal filed Under Section 100 of the CPC against the Judgment and Decree, dated 05.10.2017, made in A.S.No.4 of 2016, on the file of the learned Fourth Additional District Court, Bhavani, confirming the judgment and decree, dated 26.10.2015, made in O.S.No.26 of 2008, on the file of the learned Sub Court, Bhavani.
For Appellants : Mr.N.Manokaran
****** JUDGMENT
This appeal has been filed by the plaintiffs in O.S.No.26 of 2008 on the file of the Sub-Court, Bhavani. The suit was filed for partition and separate possession and allotment of 95 cents and 54= sq.,ft., in the Suit Schedule properties.
a. Whether the courts below have committed an error in non-suiting the plaintiffs on the basis of the
earlier judgment and decree dated 25.03.1968 made in O.S.No.20 of 1968 (Ex.A10 and Ex.A11), by ignoring factum of the release deeds dated 22.04.1968 (Ex.A1) and 02.05.1968 (Ex.A2), executed by the plaintiffs therein in favour their brothers?
b. Have not the courts below erred in faulting the plaintiffs in the present suit for ignoring the alienations made prior to the preliminary decree dated 25.03.1968 made in O.S.No.20 of 1968, especially when none of the parties to O.S.No.20 of 1968 have not taken steps to file final decree petition till this date?
c.Whether the courts below are right in placing the burden and blaming the plaintiffs in a suit for partition, particularly when the status of the parties are one and the same and vice versa? d.Whether the judgment of the first appellate court is vitiated for non compliance of the mandate of Order 41 Rule 31 CPC?
3.71 acres of land in Uratchikottai village and another extent of 1.57= acres, totally 5.28= acres. After resurvey, Ayyamperumal Gounder was entitled to 2.66 acres of land in survey No.94A and 0.90 cents in survey No.94C and 0.95= cents in Survey No.95/A and another 0.55 cents in Survey No.95/C and totally entitled to 5.08= acres of land. On 27.05.1959, Ayyamperumal Gounder along with his two sons executed a sale deed in favour of Narayanan and Nagappan in respect of 1.00 acre of land. On 17.08.1959, Ayyamperumal Gounder executed a settlement deed in respect of his 1/3rd share in favour of Gurusamy and another 1/3rd share in favour of his another son Nagappan, retaining 1/3rd share for himself. Thus, it was stated that Ayyamperumal Gounder and his sons were entitled to 1.36= acres of land. On 12.09.1959, Ayyamperumal Gounder mortgaged his share of 1.36= acres of land in favour of one Irusa Gounder. The first plaintiff's father-in-law Gurusamy Gounder sold his 1.36= acres of land which belonged to him to Irusa Gounder on 26.10.1959, who in turn sold 0.87.1/6 acres of land to one Angayammal on 12.10.1960 and sold another extent of 0.15 cents of land on 06.04.1963 in favour of Narayanan and Nagappan and another extent of 0.15 cents in favour of Peramayee by sale deed dated 01.09.1963. The said Nagappan executed a mortgage deed on 16.10.1964 in favour of Sengoda gounder in respect of 1.36-1/6 acres of land and on 05.05.1965, another mortgage was executed in favour of Pachiyannan. The said mortgages were redeemed by the first defendant on 06.03.1972 and 27.01.1975. The first defendant purchased 0.50 acres of land from Nagappan on 27.05.1981. After the death of Ayyamperumal Gounder, Gurusamy Gounder is entitled to remaining 0.681/2 cents of land, out of 1.36.1/6 acres of land. The defendants 1 to 5 are entitled to 2.54< acres of land. The plaintiffs and defendants 6 and 7 are jointly entitled to 0.68.1/12 cents of land. On 20.02.1990, the first defendant's husband along with his children and the sixth defendant Muthuvel along with his daughter Krishnaveni executed a sale deed in respect of 14 cents of land in favour of the 8th defendant. On 16.10.2002, the defendants 6 and 7 executed a sale deed in respect of 0.04 cents of land in favour of the 9th defendant. Therefore, the plaintiffs and defendants 6 and 7 are entitled to 0.50= cents of land out of 0.68.1/12 cents of land. The plaintiffs are entitled to 0.25-1/24 cents of land and defendants 6 and 7 are entitled to 0.25.1/24 cents of land. The plaintiffs are not entitled to 95 cents and 54= sq.ft. The decree obtained by the female heirs of Ayyamperumal Gounder is not valid. Even prior to the Suit, Gurusamy Gounder on 26.10.1959, executed a sale deed in respect of 1.36= acres of land in favour of Irusa Gounder. But in turn, on 12.10.1960 sold 0.87-1/6 and on 06.04.1963 another 0.15 cents of land in favour of one Narayanan and another 0.15 cents of land on 01.09.1963 in favour of Peramayee.
(i) whether the plaintiffs have got right in the Suit property and (ii) whether the plaintiffs are entitled for the relief of partition and separate possession.
The plaintiff examined herself as PW-1 and Exhibits A1 to Exhibits A11 were marked. On the side of the defendants, DW1 to DW3 were examined and Exhibits D1 to Exhibits D40 were marked. The Trial Court dismissed the Suit by judgment and decree dated 26.10.2015.
from those documents, the plaintiffs did not file any documents to substantiate their claim and their claim was solely based upon the judgment and decree in O.S.No.20 of 1968 and the settlement deeds executed by the female heirs of Ayyamperumal Gounder. The Court noted that in the said Suit namely, O.S.No.20 of 1968, which was filed by Pechiammal, Mariyayee, Guruvayee against their brother Gurusamy and his heirs and the legal heirs of another deceased brother Nagappan and purchasers namely Narayanan, Nagappan, Peramayee and Angammal and perumal. Out of 13 defendants, defendants 1 to 8, and 11, remained ex parte. The remaining defendants namely 9,10 & 12 did not contest the case, but stated that defendants 9 & 10 have purchased 1 acre of land in the eastern side of IS No.94/A and that the same may be excluded. Accordingly, a preliminary decree was passed. The 12th defendant made an endorsement that the equities raised by her namely worked out at the time of final decree proceedings and portions in enjoyment of the defendants may be allotted to her and a preliminary decree may be passed. The Trial Court accepted the endorsement and passed the preliminary decree stating that the equities will be worked out in the final decree proceedings. The plaintiffs in O.S.No.20 of 1968, did not file any application for final decree.
08.10.2018 pbn Index :Yes/No Internet:Yes/No T.S.SIVAGNANAM, J. pbn To
Pre-delivery order made in Second Appeal No.557 of 2018 and C.M.P.No.16669 of 2018
08.10.2018
2 issues framed by the court
Whether the courts below committed an error in non-suiting plaintiffs based on earlier decrees while ignoring factum of release deeds executed in their favour?
Whether courts erred in faulting plaintiffs for ignoring alienations made prior to the preliminary decree in earlier proceedings?
Kamala
Parimala
Parvathi (Died) 1.Ramar
Krishnan
Eswaran
Muthuvel
T.S. Sivagnanam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
