The High Court dismissed the second appeal filed by a plaintiff who sought to set aside a partition decree by filing a fresh suit rather than appealing. The Court held that the proper remedy for omitted documents was an application for receiving additional evidence, not a subsequent suit.
Second Appeal stands dismissed. No order as to 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
20.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.602 of 2008
Periya Sennammal ... Appellant/Appellant/Plaintiff
1.Chinnammal 2.Nallammal 3.Chinna Sennammal 4.Chenna Naicker 5.Naga Naciker 6.Chenna Naciker 7.Kuppa Naicker 8.Palaniammal 9.Chennammal ...Respondents/Respondents/Defendants
PRAYER: Second Appeal filed under section 100 of the Civil Procedure Code against the judgement and decree dated 14.08.2007, made in A.S.No.100 of 2006 on the file of the Additional District Judge – Fast Tack Court IV – Bhavani – confirming the judgment and decree dated 02.11.2005 made in O.S.No.73 of 2005 on the file of the Principal District Munsif Court, Bhavani.
For Appellant : M/s. Zeenath Begum For Respondents : Mr. R.marudhachalamurthy for R4 No appearance for R1 & R2
R3 & R5 died vide order dated 0707.2021 R6 to R9-Notice discharged with vide order dated 07.07.2021
JUDGEMENT
The unsuccessful plaintiff before the Courts below is the appellant before this Court. The suit in O.S.No.73 of 2005 has been filed by the appellant herein to set aside the decree dated 26.03.2004 in O.S.No.436 of 2004 on the file of the II Additional District Munsif cum Judicial Magistrate, Bhavani.
Naickar, Palani Naickar and Chenna Naickar and defendants 5 to 9 are the children of Muthu Naickar and the first defendant is the wife of the Palani Naickar and second and fourth defendants are his children.
Muthu Naickar became entitled to an extent of 1.15 ½ acres, Palani Naickar was entitled to an extent of 0.57 ½ cents and Chenna Naickar was entitled to 1.72 1/2 cents. After the death of their father, Chennai Naickar, the plaintiff and the third defendant were together entitled to 9/18 share in the suit schedule property.
statement in which the only defence taken out by them was that the plaintiffs therein i.e. Defendants 1 and 2 herein had never requested for a partition and therefore, their contention that the defendants therein had not come forward for partition is absolutely false. In fact, the appellant and her sister had contended that they have no objection to a partition being effected. The present suit is filed stating that the appellant had given all the documents to the Advocate who has not filed the same in the earlier suit. Be that as it may, the remedy of the appellant is to challenge the decree by filing an appeal and if certain documents had not been brought to the notice of this Court to take out the application for receiving additional documents. The appellant cannot file an other suit to set aside the decree granted in the earlier suit, that too, within a year of passing of the earlier judgment and decree. It is not a case of the appellant that she has not participated in the earlier proceedings. On the contrary, she has participated in the proceedings and filed a written statement subjecting herself to a decree for partition.
Sd/-
Assistant Registrar(T&P)
//True Copy//
Sub Assistant Registrar
kal
To
S.A.No.602 of 2008
SSD(CO)
CB(29/10/2021)
3 issues framed by the court
Whether the appellant can file a subsequent suit to set aside a decree for partition instead of filing an appeal.
Whether the remedy for suppressed documents in an earlier suit is proof by appeal or via application to receive additional documents.
If no substantial question of law exists to warrant interference in the concurrent judgment and decree of the Courts below.
1 provisions across 1 enactments
Periya Sennammal
1.Chinnammal
2.Nallammal
3.Chinna Sennammal
4.Chenna Naicker
5.Naga Naciker
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
