Second appeal against concurrent dismissal of a permanent injunction suit based on a 1973 partition deed excluding female heirs. The court held the third defendant's possession rested on an unchallenged final decree and delivery receipt, whose presumptions the plaintiffs failed to rebut, and dismissed the appeal at admission stage.
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.
S.A.No.996 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2024
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal No.996 of 2013 & M.P.No.1 of 2013
1.K.Selvam 2.K.Shankar (died) 3.S.Easwari 4.S.Jagathambal 5.S.Kumaresan 6.S.Tamilselvi ... Appellants (Appellants 3 to 6 brought into record as LRS of the deceased second appellant vide order of this Court dated 05.01.2022)
-Versus-
1.R.S.Kulandaivelu 2.J.Ethiraj 3.T.Ariyammal (Died) 4.Kumar 5.Jaganathan ... Respondents (Respondents 4 & 5 brought into record as LRS of the deceased third respondent vide order of this Court dated 05.01.2022)
Appeal filed under Section 100 of C.P.C. against the decree and judgment dated 24.01.2013 in A.S.No.1 of 2012 on the file of the Principal District Judge at Thiruvallur confirming the Judgment and Decree dated 27.06.2011 in O.S.No.23 of 2008 on the file of the Subordinate Judge, Ponneri.
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For Appellant : Mr.P.Sheshadri For Respondents : No appearance 1 & 2 R4 & R5 Refused
S.A.No.996 of 2013
JUDGEMENT
The present second appeal arises out of the judgment and decree of the court of Principal District Judge, Tiruvallur in A.S.No.1 of 2012 dated 24.01.2013 in confirming the judgment and decree of the court of learned Principal Subordinate Judge at Ponneri in O.S.No.23 of 2008 dated 26.07.2011.
S.A.No.996 of 2013
Reddy and Jagadhambal and their grandfather is Elumalai Reddy. Elumalai Reddy has three sons viz., Kothanda Reddy, Shanmuga Reddy and Balasubramanian. Elumalai Reddy, Kothanda Reddy, Shanmuga Reddy and Balasubramanian divided the property amongst themselves through a registered partition deed dated 05.12.1873. As per the said partition, A schedule property fell to the share of Elumalai Reddy, B schedule property fell to the share of Kothanda Reddy and his sons/the plaintiffs, C schedule property fell to the share of Shanmuga Reddy and D schedule property fell to the share of Balasubramanian. As per the partition deed, the female heirs of Elumalai Reddy are not entitled to any share in the same.
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S.A.No.996 of 2013
relatives, she filed a suit in O.S.No.8 of 2005. In the said suit, she obtained an interim injunction and the same was also made absolute. Narrating these facts, the first and second defendants pleaded that the third defendant had appointed them as her power agent and therefore, pleaded that the suit for injunction should be dismissed on the ground of suppression of material facts.
“1.Whether the plaintiffs are entitled for the relief of
permanent injunction as prayed for in the plaint?
entitled to?”
On the side of the plaintiffs, Ex.A1 to Ex.A4 were marked. On the side of the defendants, son of the third defendant/ one Jaganathan examined himself as DW1 and Ex.B1 to Ex.B5 were marked.
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the learned trial judge came to a conclusion that the plaintiffs are not entitled to the benefit of decree of permanent injunction. Consequently, she dismissed the suit. Aggrieved by the same, the plaintiffs filed the regular appeal. The learned Appellate Judge concurred with the view taken by the learned trial judge and dismissed the appeal. Against the concurrent findings, the second appeal has come before the court.
“1.Whether the Lower Appellate Court has properly considered the scope and effect of Ex.A1 Partition deed between Kothanda Reddy and his brother?
2.Whether Lower Appellate Court is right in finding that the appellant have not challenged the decree in O.S.No.745 of 1990 and O.S.No.8 of 2005 when admittedly the partition as between the male members under Ex.B1 was effected long prior to the amendment to Section 6 of Succession Act by the State Government and that the 3rd defendant did not get any right to seek for any partition?
3.Whether the finding of the Lower Appellate Court that the plaintiff failed to plead material facts in the plaint
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and also not proved possession as on the date of plaint to get the relief of permanent injunction?
4. Whether the Lower Appellate Court is right in dismissing the suit for permanent injunction filed by the appellant?
5. Whether the Lower Appellate Court is right in holding that as per the terms of the Partition Deed Ex.A1 and the final decree passed in O.S.No.745 of 1990 the third defendant obtained possession of the suit property and therefore the third defendant is entitled to the property, the plaintiffs have no right to interfere with her possession?”
S.A.No.996 of 2013
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S.A.No.996 of 2013
to discharge that they continued to be in possession even after Ex.B3. Unfortunately for the plaintiffs, the presumption that has been raised by virtue of Ex.B3 and Ex.B4 has not been discharged.
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dated 27.06.2011 stands confirmed. As the respondents are not entered appearance in the appeal, there shall no order as to costs.
01.03.2024
nl Index : Yes / no Neutral Citation : Yes / no Speaking / Non Speaking Order
https://www.mhc.tn.gov.in/judis 10 of 11
S.A.No.996 of 2013
V.LAKSHMINARAYANAN, J.
nl
To
2.The Subordinate Judge, Ponneri.
S.A.No.996 of 2013
01.03.2024
https://www.mhc.tn.gov.in/judis 11 of 11
2 issues framed by the court
Whether the plaintiffs were entitled to permanent injunction despite a final decree and delivery of possession to the third defendant in O.S.No.745 of 1990.
Whether the presumption from the delivery athatchi and patta in favour of the third defendant was rebutted by the plaintiffs.
2 provisions across 2 enactments
K.Selvam
K.Shankar
S.Easwari
S.Jagathambal
S.Kumaresan
R.S.Kulandaivelu
V. Lakshminarayanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
