Allowed

Sundaramoorthy v. Selvarajan

Madras HC19 Feb 2019SA/1459/2000

Case brief

AI extract

What is this about?

In a Second Appeal regarding a partition suit, the High Court held the suit was not maintainable. The Court found the plaintiff was in possession of his northern half, as admitted by him and evidenced by lease deeds and a Will dividing the property into two clear halves. Consequently, there was no cause of action to fix boundary stones or allot possession. The appeal was allowed.

What did the court decide?

Second Appeal allowed; Judgment in First Appeal set aside; Judgment in original suit confirmed.

Sundaramoorthy Vs Selvarajan — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON: 31.01.2019 DATED: 19.02.2019 CORAM : THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

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S.A. No. 1459 of 2000
1. Sundaramoorthy @ Manicka Sundaram
2. Raja @ Rajamanickam (deceased)
... 4 th & 5 th Defendants/Respondents/Appellants
3. Thilagavathi
4. Madhankumar
5. Nisanth Kumar
.. Appellants 3 to 5 brought on record as Lrs
of the deceased second appellant vide order of
Court dated 19.12.2018 made in C.M.P.No. 23184,
23187 & 23190 of 2018 in S.A.No. 1459 of 2000
Vs.
1. Selvarajan
... Plaintiff/Appellant/1 st Respondent
2. Subramaniam
3. Dharmasivam
4. Muthu @ Jagannathan (deceased)
5. Sundaram .. Defendants 1, 2, 3 & 6/Respondents 1, 2,
3 & 6

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PRAYER: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the District Court, Erode, made in A.S.No. 138 of 1999 dated 30.11.1999, reversing the Judgment and Decree of the Principal Sub Court, Erode, made in O.S.No. 652 of 1995 dated 25.03.1999.

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For Appellants : Mrs. Chitra Sampath Senior Counsel for Mr. M.Guru Prasad For 1^st Respondent : Mr. S. Parthasarathy Senior Counsel for Mr.L.Mouli

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JUDGMENT

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The fourth and fifth defendants in O.S.No. 652 of 1995 on the file of the Principal Sub Court, Erode, are the appellants herein.

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O.S.No. 652 of 1995 had been filed by the plaintiff Selvarajan against six defendants, Subramaniam, Dharmasivam, Muthu @ Jaganathan, Sundaramoorthy @ Manicka Sundaram, Raja @ Rajamanickam and Sengottan seeking a Judgment and Decree directing division of the suit properties into two equal shares after fixing the boundaries of the suit properties and allot the northern portion in each item to the plaintiff and put him in separate possession and to effect the division as aforesaid by a Commissioner appointed by the Court and also for costs of the suit.

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By Judgment dated 25.03.1999, the learned Principal Sub Judge, Erode, dismissed the suit. Thereafter, the plaintiff filed A.S.No. 138 of 1999 before the Principal District Court, Erode. The plaintiff who was the appellant also filed I.A.No. 383 of 1999 under Order 41 Rule 27 Civil Procedure Code to file additional documents. By Judgment dated 30.11.1999, the learned Principal District Judge, Erode, allowed the Appeal and decreed the suit. I.A.No. 383 of 1999 was also allowed and additional documents were marked on the side of the plaintiff / appellant. Challenging that Judgment, the third and fourth defendants Sundaramoorthy @ Manicka Sundaram and Raja @ Rajamanickam have filed the present Second Appeal.

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The Second Appeal was originally admitted on the following substantial question of law:-

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dismissed and therefore,the present suit filed by the plaintiff is barred by the principles of res judicata and also under Order II Rule 2 of the Code of Civil Procedure?”

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Subsequently, during the course of hearing, it transpired that the actual substantial question of law which had to be examined by the Court was

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“Whether the Judgment and Decree of the

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Lower Appellate Court is vitiated in that the Lower Appellate Court failed to consider the Exs. A5, B6 and B7 and the testimony of P.W.1 which would clearly prove that the plaintiff was in possession of his half share on the northern portion and therefore the suit filed for partition is not maintainable in law?”.

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Accordingly, the original substantial question of law was deleted and arguments were advanced by both the learned Senior Counsels for the appellant and the respondents on the above substantial question of law.

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Pending the Appeal, the second appellant/fifth defendant died and his legal representatives were brought on record as 3 to 5 appellants. The fourth respondent also died, however a memo was filed that he had remained exparte throughout. No specific relief had been claimed against him in the suit.

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O.S.No. 652 of 1995 – Principal Sub Court, Erode:

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The plaintiff Selvarajan and the first defendant Subramaniam were brothers. The second defendant Dharmasivam was impleaded since it was claimed that he was the power of attorney agent of the first defendant. The third to sixth defendants were also impleaded since they were co-owners of the suit survey fields. It was stated in the plaint that Ranganayaki Ammal, the mother of the plaintiff had purchased the suit property by a registered sale deed dated 23.08.1957. The first item of suit property was land measuring 7.46 acres in S.No. 254/1 in Erode and the second item of suit property was a portion of the above said land measuring 0.66 acres. Ranganayaki Ammal filed a suit for partition against other co-owners, namely, Nachimuthu Gounder and others, who are the predecessors of the third to sixth defendants in O.S.No. 57 of 1962 on the file of the District Munsif, Erode. The defendants set up a plea of prior oral partition. The suit was disposed of on 29.06.1963.

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Ranganayaki Ammal then executed a registered Will dated 25.11.1965 by which she bequeathed the entire suit properties to her husband Ramasamy Naidu. She died on 12.12.1965. Ramasamy Naidu became the absolute owner of the suit properties. Patta was also transferred in his name. The other co-owners interfered with his peaceful possession. He therefore filed a suit for permanent injunction in O.S.No. 2032 of 1979 on the file of the District Munsif Court, Erode. This was then transferred as O.S.No. 257 of 1982 to the file of the Sub Court, Erode. In that suit, the defendants were Nachimuthu, father of the third defendant, his another son and his two other sons, the third and fourth defendants herein. The defendants set up a plea of adverse possession which was rejected by Judgment dated 28.07.1983. The Appeal in A.S.No. 147 of 1983 was dismissed by Judgment dated 20.06.1984. The Second Appeal in S.A.No. 98 of 1986 was also dismissed by Judgment dated 19.03.1991. Ramasamy Naidu attended to the agricultural activities in the lands till his life time. After his death, the plaintiff claimed to have visited the suit properties and found that the survey stones demarking the boundaries were missing. The plaintiff was not able to fix the boundaries of the suit properties. He claimed that the third to sixth defendants, who are the adjoining land owners had played mischief. The fourth defendant is also working as Village Administrative Officer. It was under these circumstances that the suit had been filed seeking the reliefs as stated above.

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The fourth and fifth defendants in their written statement denied the allegations. However, they admitted the correctness of the facts relating to O.S.No. 57 of 1962 on the file of the District Munsif Court, Erode filed by Ranganayaki Ammal. It was stated that the plaintiffs, who claimed right and title through Ranganayaki Ammal are also bound by the said Judgment. It was therefore stated that a subsequent suit filed seeking to fix the boundary stones and to put the plaintiff under possession was not maintainable and was barred under Order II Rule 2 Civil Procedure Code.

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The facts relating to O.S.No. 257 of 1982 filed by Ramasamy Naidu was also admitted as correct. It was also stated that the plaintiff was bound by the said Judgment. A Commissioner had been appointed and the Court had also passed a decree in favour of Ramasamy Naidu, the father of the plaintiff. It was stated that during his lifetime, Ramasamy Naidu and the first defendant divided the suit property into two equal shares as northern half and southern half. The northern half was bequeathed to the plaintiff, and the southern half was bequeathed to the first defendant by Will dated 13.03.1994 executed by Ramasamy Naidu. The first defendant had appointed

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the second defendant has his power of attorney agent. The second defendant had sold the southern half to the fourth and fifth defendants on 11.07.1995 for valuable consideration of Rs.41,500/-. It was stated that therefore no issue arose relating to fixing of the boundary stones and allotting the northern half to the plaintiff. The claims that the boundary stones were missing were denied. The specific allegation that the defendants played mischief was denied. It was stated that the suit properties had also been demarked and the defendants are in possession of the southern half in pursuant to the sale deed dated 11.07.1995. It was therefore claimed that there was no cause of action for the suit and that the suit should be dismissed.

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On the basis of the above pleadings, the learned Principal Sub Judge, Erode framed the following issues for trial:-

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“(i) Whether the suit is barred under Order II Rule 2 Civil Procedure Code?;

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(ii) Whether the plaintiff is entitled for partition and separate possession as claimed in the plaint?; and

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During trial, the plaintiff Selvarajan examined himself as PW-1. The fourth defendant Sundaramurthy @ Manickasundaram examined himself as DW-1. The plaintiff marked Exs. A-1 to A-12. Ex.A-1 was the sale deed in favour of Ranganayaki Ammal dated 23.08.1957; Ex.A-2 was the copy of the Judgment in O.S.No. 57 of 1962 on the file of the District Munsif Court, Erode, dated 29.06.1963; Ex.A-3 was the Judgment in O.S.No. 257 of 1982 on the file of the Sub Court, Erode, dated 28.07.1983; Ex.A-4 was the Judgment in A.S.No. 147 of 1983; Ex.A-5 was the Judgment in S.A.No. 98 of 1986; Ex.A-6 was the Will executed by the father of the plaintiff dated 13.03.1994; Ex.A-8 was the public notice issued by the surveyor; Ex.A-9 was the chitta in the name of Nachimuthu Gounder; and Ex.A-12 was the notice issued by the Tahsildar, Erode, dated 20.11.1995.

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The defendants marked Exs. B-1 to B-9. Ex.B-1 was the copy of the plaint in O.S.No. 257 of 1982; Ex. B-2 was the copy of the Decree; Ex.B-3 was the copy of the Commissioner report and sketch; Ex.B-4 were the notes for inspection given to the Commissioner in O.S.No. 257 of 1982; Ex.B-5 dated 13.03.1994 was the copy of the Will executed by Rangasamy Naidu; Ex.B-6 was

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the lease deed between the Ramasamy Naidy and his son, the plaintiff dated 16.03.1994; Ex.B-7 was a similar lease deed between Ramasamy Naidu and his another son the first defendant; Ex.B-8 was the power of attorney granted to the second defendant by the first defendant dated 10.07.1995; and Ex.B-9 was the sale deed in favour of the fifth defendant dated 11.07.1995.

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On the basis of the oral and documentary evidence, the learned Principal Sub Judge, Erode, observed that according to Ex.A-5 which was the Judgment in S.A.No. 98 of 1986 dated 19.03.1991, and which related to the same suit property and which emanated from a suit filed by Ramasamy Naidu the father of the plaintiff for permanent injunction, it was held that the plaintiff was entitled to an order of injunction with respect to the suit property. The learned Sub Judge therefore held that since the plaintiff already had a decree granting injunction, the present suit was barred by the principles of Order II Rule 2 Civil Procedure Code. It was also found that the suit property had been in the possession of the plaintiff, his mother and father from the year 1957 and the plaintiff's possession have been upheld by the High Court in S.A.No. 98 of 1996 and consequently, it was observed that a second suit seeking to fix the boundary stones was not maintainable. It was further held that the plaintiff cannot be granted the same relief again. The frame of the suit was held to be not proper and consequently, the suit was dismissed.

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A.S.No. 138 of 1999 and I.A.No. 383 of 1999 (Principal District Court, Erode):

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The plaintiff then filed the said First Appeal. Along with the First Appeal, the plaintiff filed I.A.No. 383 of 1999 under Order 41 Rule 27 Civil Procedure Code seeking permission to file additional documents. By Judgment dated 30.11.1999, the learned Principal District Judge, Erode, framed the following point for consideration:-

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“Whether the appellant/plaintiff was entitled for partition and separate possession?”

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The learned Principal District Judge reappraised the evidence and found that Ramasamy Naidu, the father of the plaintiff, had bequeathed the northern portion of the lands to the plaintiff and the southern portion to the first defendant. It was found that the first defendant had appointed the second defendant as his power of attorney agent. The second defendant had executed a sale deed in favour of the fifth defendant with respect to the southern portion of the suit property. It was stated that the third to sixth defendants had no manner of right or title over the northern portion of the suit property. The

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Interlocutory Application under Order 41 Rule 27 Civil Procedure Code was also examined. Among the documents sought to be produced, the first document was the receipt of payment of Rs.24/- on 28.10.1983 by the father of the plaintiff for survey of the land. The second document was the letter written by the Tahsildar in this regard. The third document was another receipt dated 04.11.1991 for payment made towards survey of the lands. The fourth document was a letter seeking survey of the land issued by the father of the plaintiff. The fifth document was a notice to the Tahsildar dated 19.10.1999. The seventh document was another notice issued to the Tahsildar dated 29.10.1993. It was therefore found by the Principal District Judge that the property had not been surveyed and boundary stones had not been fixed. Consequently, the learned Principal District judge thought it fit to allow the appeal and also simultaneously allowed I.A.No. 383 of 1999 and the additional documents were marked as Exs. A-13 to A-20. It is pertinent to point out that the procedure contemplated under Order 41 Rule 28 Civil Procedure Code was not followed.

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S.A.No. 1459 of 2000:-

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The fourth and fifth defendants then filed the present Second Appeal. As stated above, the Second appellant/fifth defendant died pending the Second Appeal and his legal representatives were brought on record as 3 to 5 appellants. The fourth respondent/third defendant also died pending the Second Appeal. However a memo was filed stating that the said fourth respondent/third defendant had not participated in the trial proceedings or in the First Appellate Court proceedings. The Second Appeal had been admitted on the following substantial question of law:-

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“Whether the Judgment of the Lower Appellate Court is vitiated in that the Lower Appellate Court failed to see that the earlier suit O.s.No. 57 of 1962 filed by the mother of the plaintiff, the original owner, for the very same relief in respect of the very same properties was dismissed and therefore,the present suit filed by the plaintiff is barred by the principles of res judicata and also under Order II Rule 2 of the Code of Civil Procedure?”

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However, during the course of arguments, it transpired that it was the following substantial question of law that actually arose in the Second Appeal.

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“Whether the Judgment and Decree of the Lower Appellate Court is vitiated in that the Lower Appellate Court failed to consider the Exs. A5, B6 and B7 and the testimony of P.W.1 which would clearly prove that the plaintiff was in possession of his half share on the northern portion and therefore the suit filed for partition is not maintainable in law?”.

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Both the learned Senior Counsels for the appellants and the respondents advanced arguments on the above substantial question of law.

¶49

The suit property originally belonged to Ranganayaki Ammal, the mother of the plaintiff. She purchased the property by sale deed dated 23.08.1957. That sale deed had been produced as Ex.A-1. However she instituted a suit for partition in O.S.No. 57 of 1962 on the file of the District Munsif Court, Erode against Nachimuthu Gounder and others. It must be mentioned that the third defendant Muthu @ Jaganathan was son of Nachimuthu Gounder and the fourth and fifth defendants were the sons of the third defendant. In the said suit, it had been held as follows by Judgment dated 29.06.1963. The copy of the Judgment had been filed as Ex.A-2:

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“Thus, considering the entire materials on record and other surrounding circumstances in the case, I consider that there is great force in the contention of the defendant that there had already been a partition in the suit land between the predecessors in title of the plaintiff and of the defendant, and the plaintiff is not justified in asking for a fresh partition by metes and bounds. This issue is accordingly answered in favour of the defendants.”

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It is therefore seen that the area purchased by Ranganayaki Ammal had been well defined and it was found that there was no necessity to partition the said portion. This finding has become final. Subsequently, Ranaganayaki Amal had executed a Will dated 25.11.1965 by which she bequeathed the properties to her husband Ramasamy Naidu. Ramasamy Naidu inturn had bequeathed the northern half of the suit property to the plaintiff and the southern half of the suit property to his other son, the first defendant. This was by Will dated 13.03.1994 which had been produced as Exs. A-6/B-5. Consequently, again it is seen that the property had been divided into two equal portions, namely, northern half and

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southern half. The first defendant Subramaniam appointed by Ex.B-8, dated 10.07.1995 the second defendant Dharmasivam as his power of Attorney Agent. The second defendant under authority of such power sold the southern half belonging to the first defendant to the fifth defendant by sale deed dated 11.07.1995. This sale deed was produced as Ex.B-9. It is therefore seen that again the property had been divided into two parts namely northern part in the possession of the plaintiff and the southern part in the possession of the first defendant. To further substantiate that the properties have been divided into two parts, the defendants filed Exs. B-6 and B-7. Ex.B-6 and B- 7 are both dated 16.03.1994. They are the lease deeds executed by Ramasamy Naidu in favour of his son, the plaintiff with respect to the northern half and in favour of his another son, the first defendant with respect to the southern half. Thus the property had at all material points of time been divided into two portions, namely, northern half and southern half. PW-1 in his evidence had affirmed that he was allotted the northern half under the Will of his father and that his brother the first defendant was allotted the southern half. He also admitted during cross examination as follows:-

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“th.rh.M. 2 jPh;g ;gpd;gb vd; jhahhpd; fpiua Kd;Ndhh;fNsh eye;jpfL fz;L, Fwpg;gpl ;l vy;iyfSld; epue;ju mj;Jf ;fSld; jhth nrhj;ij mDgtpj;J te;jhh;fs ; vd;why ; rhp. ,Nj jhth nrhj;Jf ;fisAk; jhahUk ; jhahUf;F gpd;dpl ;L vd; jfg;gdhUk; ,Nj nrf;Fge;jp msTfSld; mDgtpj;J te;jhh;fs ;. vd; jhahh; vd; jfg;gdhUf;F 25.11.1965 y; capy; vOjp itj;jhh; vd;why ; rhp. 16.03.94 y; vdf;Fk ; vd; rNfhjuUf;Fk ; Fj;jif gj;jpuk; vOJk; fhyk; tiu vd; jfg;gdhh; jhd; mDgtpj;J te;jhh; vd;why ; rhp. 1957 Kjy; ehsJ tiu jhth nrhj;Jf ;fs ; XNu khjphp jhd; cs;sJ. Jhth 1- tJ mapl;l nrhj;J 0.28 nrz;l ;. mjd; nrf;Fge;jp fpzw;Wf ;Fk ; tlf;F, ehr;rpKj;J fTz;lh ; G+kpf;Fk ; fpHf;F, Nkw;F, njw;F vd;why; rhp. ,jpy; tlGw rhpghjpapy; vd;Dila RthjPdk; mNjNghy;, 2-tJ mapl;lk ; 0.66 nrz;l ;. ,jd; nrf;Fge;jp ehr;rpKj;J fTz;lh ; tPL, fhypaplk,; Rth; ,itfSf;F tlf;F, tPug;gk ;ghisak; NghFk; njd;tly; nghJ ,l;Nlhpf;F Nkw;F, ehr;rpKj;J fTz;lhpd; G+kpapd; njd;tly; cj;jpf;Fk ; fpHf;F, ehr;rpKj;J fTz;lUila G+kpf;F njw;F vd;why; rhp. ,e;j G+kpapy; tlGwk; rhpghjp vd; RthjPdj;jpy; cs;sJ. Jhth 1, 2 mapl;l nrhj;Jf ;fspYk; njd;Gwrhp ghjp ghfj;jpy ; 1k;gpujpthjpapd; mDgtj;jpy; ,Ue;J tUfpwJ vd;why; rhp.

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He further admitted as follows with respect to Exs. B-6 and B-7:-

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“th.rh.M.6 kw;Wk ; gp.rh.M.5 capy;fspd;gb jhth nrhj;Jf ;fspy; tlGwk; rhpghjp vdf;Fk ;> njd;Gwk ; rhpghjp vd; mz;zhh; 1k; gpujpthjpf;Fk ; ghj;jpak; vd;why ; rhp. 16.03.94y; vd; jfg;gdhh; vdf;F xU Fj;jifg; gj;jpuk; vOjpf; nfhLj;Js ;shh; vd;why; rhp. mjd; efy; gp.rh.M.6. mNj Njjpapy; vd; jfg;gdhh; 1k; gpujpthjpf;Fk ;

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xU Fj;jifg; gj;jpuk; vOjpf; nfhLj;Js ;shh;. mjd; efy; gp.rh.M.7. th.rh.M.6 kw;Wk ; gp.rh.M.5 capypy; Fwpg;gpl ;l nrf;Fge;jp tpguq ;fs ; jhd; gp.rh.M.6 kw;Wk ; gp.rh.M.7 y; Fwpg;gplg;gl ;Ls ;sJ vd;why; rhp. gp.rh.M.6 kw;Wk ; 7 gb mNj Njjpapy; jhth nrhj;jpy ; vdf;F tlGwk; rhp ghjpiaAk;> vd; mz;zhUf;F njd;Gwk ; rhpghjpiaAk; RthjPdk; nfhLj;jhh; vd;why; rhp. vd; jfg;gdhh; md;Nw vq;fSf;F RthjPdk; xg;gilj;Jtpl ;lhh;”

¶59

It is seen from the above extracted portion from the evidence of PW-1 admission that the plaintiff had categorically admitted that the suit property had been divided into two halves, namely, northern half and southern half with definite boundaries and that the plaintiff was in possession of the northern half and that his brother, the first defendant was in possession of the southern half. As a matter of fact their father had also executed Exs. B-6 and B-7, two separate lease deeds in favour of eachone of them dividing the property into Northern and Southern halves. There were thus two well defined properties. It must be remembered that already the father of the plaintiff and the first defendant, namely, Ramasamy Naidu had the benefit of an order of injunction granted by the trial Court by Judgment in O.S.No. 257 of 1982 dated 28.07.1983 and confirmed by Judgment in A.S.No. 147 of 1983 dated 20.06.1984 and by Judgment in S.A.No. 98 of 1986 dated 19.03.1991 which Judgments had been produced as Exs. A-3 to A-5.

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In this factual background, I hold that there was no cause of action for instituting the present suit calling upon the Court to fix boundary stones and allot the northern half to the plaintiff. The plaintiff's suit is wholly misconceived. He has not given the dates when he visited the lands. He had not given the details when he sought the assistance of a surveyor to survey the lands. The additional documents produced at the first appellate stage had not been proved in manner known to law. They had not gone through the procedure envisaged under Order 41 Rule 28 Civil Procedure Code. The Court cannot survey the land and fix boundary stones. Consequently, with respect to the substantial question of law, I hold that the Lower Appellate Court had failed to consider Ex.A-5, the Will of the father of the plaintiff and the first defendant dividing the property in to a northern half and a southern half and also Exs. B-6 and B- 7, the two lease deeds again dividing the property into a northern half and a southern half. When the plaintiff himself has admitted that he was in possession of the northern half, then the issue of fixing boundary stones will never arise. The suit as framed is not maintainable and has to fail. The substantial question of law is answered in favour of the appellants. Consequently, this Second Appeal filed by the fourth

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and fifth defendant has to succeed and accordingly, it is allowed with costs.

¶63

The Second Appeal is allowed with costs. The Judgment in A.S.No. 138 of 1999 on the file of the District Court, Erode, is st aside and the Judgment in O.S.No. 652 of 1995 on the file of the Principal sub Judge, Erode, is confirmed.

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Sd/-
Assistant Registrar(Insp.cell )

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//True copy//
Sub Assistant Registrar
vsg
To
1. The District Judge, Erode.
2. The Principal Sub Judge, Erode.
3. The Section Officer,VR Section, High Court, Madras.
+1cc to Mr.L.Mouli, Advocate SR.No.15879
+1cc to Mr.M.Guruprasad, Advocate SR.No.15478
S.A. No. 1459 of 2000
AD(CO)
GMY(02/05/2019)

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Sundaramoorthy v. Selvarajan

Case brief

What is this about?

What did the court decide?

Sundaramoorthy v. Selvarajan

Case brief

What is this about?

What did the court decide?

What the court decided

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