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2010 DIGILAW 3101 (MAD)

Peddavadan v. Chinnakannu

2010-07-27

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 10.1.2005 passed by the Additional District Munsif, Vellore, in I.A.Nos.18 and 17 of 2004 in O.S.No.168 of 1996, these civil revision petitions are focussed. 2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these revision petitions would run thus: (i) The revision petitioner herein filed the suit O.S.168 of 1996 seeking the following reliefs: "(a) to direct the division of the suit properties into two equal share and allot one such share to the plaintiff; (b) to direct the defendant to deliver possession of the suit properties so allotted to the plaintiff directly or through court; (c) to direct enquiry under Order 20 Rule 12 CPC in respect of mesne profits. (d) to direct the defendant to pay the cost of the suit." (ii) The original defendant is none but the brother of the revision petitioner/plaintiff. Since the defendant remained absent, ex-parte decree was passed granting the reliefs as prayed in the suit. (iii) It so happened that after obtention of the preliminary decree, the revision petitioner/plaintiff filed the applications to get the Commissioner appointed and for obtaining a final decree. (iv) While the commissioner appointed in the case was processing the matter, the respondent herein, namely, Chinnakkannu filed the two interlocutory applications I.A.Nos.17 and 18 of 2004 with the following prayers: I.A.No.17 of 2004: to set aside the exparte decree passed on 17.9.2002. I.A.No.18 of 2004: To implead him as 2nd defendant in the suit. (v) Ultimately, the lower Court allowed the said Chinnakkannu to get himself impleaded as one of the defendants in the suit and also allowed the one other application in setting aside the ex-parte preliminary decree passed in the suit. 3. Being aggrieved by and dissatisfied with the said orders, these revisions have been filed more or less on the same grounds by the plaintiff, the gist and kernal of them would run thus: Chinnakkannu being the purchaser pendente lite is having no right to get the ex-parte decree set aside and he is not at all a necessary party and the Court below after two years of passing of the preliminary decree set aside the same and permitted the said Chinnakkannu also to get impleaded, ignoring the doctrine of lis pendens. Accordingly, the revision petitioner/plaintiff prays for setting aside the orders of both the Courts below. 4. Accordingly, the revision petitioner/plaintiff prays for setting aside the orders of both the Courts below. 4. Whereas, by way of torpedoing and pulverising the arguements as put forth and set forth on the side of the revision petitioner, the learned counsel for the first respondent-Chinnakkannu would advance his arguments, which could tersely and briefly be set out thus: (i) Suppressing the real facts, the plaintiff did choose to file the suit arraying his brother Chinnappan as the sole defendant. Chinnappan even before the filing of the suit by the plaintiff sold his half share in the suit properties in favour of one Dhanalakshmi and Jegannathan, vide sale deeds dated 5.10.1987 and 6.12.1993, respectively and as such, even before the filing of the suit by the plaintiff in the year 1996, Dhanalakshmi and Jegannathan acquired right over the suit properties, but they were not impleaded in the suit, by the plaintiff. (ii) Subsequently, the said Dhanalakshmi and Jagannathan sold the property, which they purchased from Chinnappan in favour of the respondent/Chinnakkau in the year 1998. Chinnakkannu was not aware of the proceedings. When the Court Commissioner visited the property concerned for measurement and demarcation, he, within 30 days from the date of knowledge filed such applications and the Court below correctly allowed those applications, warranting no interference by this Court in the revision. Accordingly, the learned counsel for the first respondent prays for dismissing the CRP. 5. Heard both sides. 6. The point for consideration is as to whether the lower Court was justified in setting aside the preliminary decree passed by it earlier and also in permitting Chinnakkau to implead himself as one of the defendants in the suit. 7. Indubitably and indisputably the admitted facts are that the plaintiff and the original defendant Chinnappan are brothers. Fortunately, in this case the first respondent herein-Chinnakkanu did not dispute the quantum of share of the plaintiff and the original defendant respectively. 8. The learned counsel for the first respondent-Chinnakkau would make a categorical submission that he is only interested in getting the half share of Chinnappan and nothing more. Fortunately, in this case the first respondent herein-Chinnakkanu did not dispute the quantum of share of the plaintiff and the original defendant respectively. 8. The learned counsel for the first respondent-Chinnakkau would make a categorical submission that he is only interested in getting the half share of Chinnappan and nothing more. In such a case, I am of the considered view that even without setting aside the preliminary decree, straight away in the final decree itself, the said Chinnakkanu could be added as R2 and he can even file his counter and also adduce oral and documentary evidence, so as to work out the equities. 9. It is not the case of any one here that there was already oral partition or partition etc. As such, during the final decree proceedings with the help of the Court Commissioner, the properties have to be divided by metes and bounds and at that time it is open for Chinnakkannu to file his claim/counter/objections and also adduce evidence, so as to work out the equities. I make it clear that Chinnakkau can only claim the share of Chinnappan. Precisely, the Court has to decide which portion has to be allotted to whom, after hearing both sides on merits. 10. The learned counsel for the first respondent-Chinnakannu would cite the decision of this Court reported in 1996(3) ALT 1097 -CH.YASHODA DEVI AND ANOTHER V. B.DAYAKAR REDDY AND OTHERS. He placed reliance on the said decision purely for the purpose of highlighting the point that a third party can very well file the application and get the ex-parte preliminary decree set aside and get impleaded themselves in the suit. 11. There could be no quarrel over such a proposition. Here by relegating the case to an earlier stage, so to say, anterior to the preliminary decree stage, no fruitful purpose would be served because it is clear that the plaintiff and the original defendant are entitled to half share each and Chinnakkau only stepped into the half share of Chinnappan through Dhanalakshmi and Jagannathan. In such a case, I am of the considered opinion that the order dated 10.1.2005 passed by the Additional District Munsif, Vellore, in I.A.Nos.18 and 17 of 2004 in O.S.No.168 of 1996 could be set aside, and the preliminary decree shall hold good. In such a case, I am of the considered opinion that the order dated 10.1.2005 passed by the Additional District Munsif, Vellore, in I.A.Nos.18 and 17 of 2004 in O.S.No.168 of 1996 could be set aside, and the preliminary decree shall hold good. The order passed in the impleadment application shall stand confirmed with the modification that straight away Chinnakkau has to be arrayed as R2 in the final decree application and accordingly after hearing both sides, the Court concerned shall pass orders on merits. 12. The revision petitioner/plaintiff shall carry out necessary amendment in the final decree petitions and the connected petitions and whereupon the newly added party, namely, Chinnakkannu shall file his claim/counter/objections and both sides can adduce evidence to work out the equities, as already referred to supra. The lower Court shall see to it that the matter is disposed of within a period of four months from the date of receipt of copy of this order. The civil revision petitions are ordered accordingly. No costs. Consequently, connected CMPs are closed.