The High Court dismissed a civil revision petition against an order dismissing a request to recast issues in a partition suit. The court upheld the trial court's dismissal as no draft issues were filed and permitted the petitioner to file a petition for rejection of plaint.
The petitioners are granted liberty to file a petition for rejection of plaint.
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.
C.R.P.(PD)No.1066 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD)No.1066 of 2018
and C.M.P.No.5626 of 2018
1. D.Mohammed Dhaha
2. M.D.Khadija Banu ... Petitioners
Vs.
1. M.D.Ameerunnissa
2. K.Md.Yousuf
3. K.Md.Ali
4. K.Misiriya
5. Khaleelur Rahman
6. S.Sairath
7. Sarath
8. Hameed
9. Yusuf
10. Akbar
11. Rasheeda Begum
12. Md.Ghouse
13. Kalvath Syed Abdul kadir
14. Minor Kilir Mohideen
Rep by his mother and
next friend Rasheeda Begum ... Respondents
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C.R.P.(PD)No.1066 of 2018
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 07.02.2018 made in I.A.No.75 of 2017 in O.S.No.56 of 2014 on the file of the learned Principal District Judge, Vellore.
For Petitioners : Mr.A.U.Ilango
For Respondents For R1 : Mr.N.A.Nissar Ahmed
ORDER
The Civil Revision Petition is directed as against the fair and
decreetal order dated 07.02.2018 passed by the learned Principal District
Judge, Vellore, in I.A.No.75 of 2017 in O.S.No.56 of 2014, thereby dismissing the petition to recast the issue Nos.1 & 2 which were already
framed by the trial Court.
first respondent herein. The first respondent filed suit in O.S.No.56 of 2014 for partition and also for declaration declaring that the final decree passed the Court below in O.S.No.65 of 2009 dated 01.04.2010 as null and void. The trial Court framed the issues as follows :-
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C.R.P.(PD)No.1066 of 2018
"1. Whether the plaintiff is estopped to claim any relief against the final decree passed in O.S.No.65/2009.
2. Whether the plaintiff is estopped to claim any right in view of the findings in W.P.No.14103/2014 and 22511 of 2012 on the file of Hich Court of Madras?
3. Whether the plaintiff is entitled to preliminary decree of partition of 4/12 shares in the suit properties?
4. Whether the plaintiff is entitled to a decree of declaration to declare the final decree passed in O.S.65/09 dated 01/04/2010 as null and void?
5. Whether th e plaintiff is entitled to a decree or permanent injunction against the defendants?
6. To what other relief the plaintiff is entitled?"
the trial Court as follows :-
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C.R.P.(PD)No.1066 of 2018
"1. Whether the plaintiff is entitled to have
the final deceree passed in O.S.65/2009 by the District Court, Vellore, set aside and whether she is entitled to claim any relief against the final decree passed in O.S.65/2009
2. Whether the plaintiff is entitled to claim any right in view of the W.P.No.14103/2014 and W.P.21511 of 2012 on the file of High Court of Madras?
3. Whether the plaintiff is entitled to claim the relief of partition of the suit properties without setting aside the compromise final decree passed in O.S.65/2009, District Court, Vellore.
4. Whether the Court fee paid under Section 37(II) of the T.N.C.F. Act is correct and whether the plaintiff is in joint possession of the suit properties."
reasons that the issue Nos.1 & 2 have placed the burden of proof on the petitioners. Further submitted that the petitioners filed suit in O.S.No.65 of
2009 for partition of the suit properties. All the parties in the present suit are
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C.R.P.(PD)No.1066 of 2018
the parties to the above suit. In the said suit all the parties amicably settled the issues and agreed to pass the final decree by allotting the properties to their concerned by a compromise. Accordingly, the Court below passed the decree in O.S.No.65 of 2009. The first respondent herein is the party to the
said suit and on the strength of the compromise decree, she also filed petition to the Tashildar concerned and requested not to sub divide the properties in accordance with the decree, since there is a mistake in their respective shares. When it being so, without setting aside the decree passed in O.S.No. 65 of 2009, the first respondent is not entitled for partition and
the suit itself is liable to be struck of.
far as the issues 1 & 2 are concerned, those issues were already framed by
the Court below, on the basis of the draft issues submitted by the first respondent. Admittedly, the petitioners failed to file any draft issues before the trial Court. Therefore, the Court below rightly dismissed the petition and this Court finds no illegality or infirmity in the order passed by the Court below.
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C.R.P.(PD)No.1066 of 2018
petitioners would submit that the suit itself is barred without challenging the decree passed in O.S.No.65 of 2009 dated 01.04.2010 and seeks liberty to
file petition for rejection of plaint. Considering the above, the petitioners are always at liberty to file petition for rejection of plaint in the manner known to law. Since the suit is of the year 2014, the trial Court is directed to dispose the suit within a period of six months from the date of receipt of a
copy of this Order.
dismissed. There shall be no order as to costs. Consequently connected miscellaneous petition is closed.
15.04.2021
Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts
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C.R.P.(PD)No.1066 of 2018
To
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C.R.P.(PD)No.1066 of 2018
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.(PD)No.1066 of 2018
and C.M.P.No.5626 of 2018
15.04.2021
Page 8 of 8
2 issues framed by the court
Whether the Trial Court correctly dismissed the petition to recast issues in a partition suit without a filed draft.
Whether the petitioner is barred from proceeding without challenging the compromise decree from 2010.
2 provisions across 1 enactments
D.Mohammed Dhaha
M.D.Khadija Banu
M.D.Ameerunnissa
K.Md.Yousuf
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
