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2013 DIGILAW 38 (MAD)

K. Chithiraiselvam v. C. Veerabathiran

2013-01-03

G.RAJASURIA

body2013
Judgment 1. Heard both the sides. The germane facts absolutely necessary for the disposal of these Civil Revision Petitions would run thus: Originally, the suit in O.S.No.74 of 2008 was filed for partition, whereupon preliminary decree was passed as against which an appeal was preferred before the High Court and in the appeal, judgment was pronounced on 22.11.2011 prescribing certain time limit for disposal of the final decree proceedings. Thereafter, it appears that before the Lower Court, the I.A.No.267 of 2012 was filed by the revision petitioners/plaintiffs to permit them to amend the final decree petition as per the particulars given in the petition. Similarly, the I.A.No.268 of 2012 was filed by the seventh and eighth defendants to add certain properties which have been left out in the 'A' schedule property and to delete some properties after the Court Commissioner pointed out the same. After hearing both the sides, the Lower Court dismissed both the applications on the main ground that in as much as a time limit has been fixed by the High Court, entertaining of those two petitions would further protract the proceedings; there was no sufficient evidence to hold that such properties should be added or that certain other properties should be deleted at the final decree stage; and that amendment of survey numbers also would lead to further complications. With the aforesaid findings, the Lower Court dismissed both the applications. 2. Being aggrieved by and dissatisfied with the orders passed by the Lower Court, the present Civil Revision Petitions have been focussed on various grounds. 3. The learned counsel for the revision petitioners/plaintiffs would pyramid his arguments which could succinctly and precisely bet set out thus: During the final decree proceedings, when the Commissioner visited the suit properties and started surveying them with the help of a surveyor and the revenue officials, with reference to revenue records and also in the presence of all the parties concerned, certain new facts came to the knowledge of the plaintiffs and some of the defendants, that certain properties were left out accidentally and certain other properties were wrongly included in the schedule of the plaint and in respect of some other properties, the sub-division numbers were not properly specified. Whereupon, those two applications were filed by the respective parties, but the Lower Court, without considering the importance of those applications, simply dismissed them warranting interference in revision. 4. Whereupon, those two applications were filed by the respective parties, but the Lower Court, without considering the importance of those applications, simply dismissed them warranting interference in revision. 4. The learned counsel for the defendants 7 and 8 would virtually support the arguments of the learned counsel for the revision petitioners. Similarly, the learned counsel for the defendants 3, 4 and 6 also would support the arguments of the learned counsel for the revision petitioners. 5. Whereas, the learned counsel for Azhagar-D3 would oppose and challenge the arguments as put forth by the learned counsel for the plaintiffs on the main ground that the revision petitioners/plaintiffs and D7 and D8, at their whims and fancies cannot try to get new properties included and also get certain properties deleted from the schedule. The Lower Court correctly observed that at the final decree proceedings, this sort of additions and deletions and carrying out amendments would lead to a murky situation. 6. The point for consideration is as to whether there is any perversity or illegality in the order of the Lower Court. 7. What I could glean and discern from the perusal of the records and submissions of both the sides, is that when the Advocate Commissioner visited the suit property with the help of revenue officials, surveyor and started identifying the suit properties in the presence of the parties concerned, certain new facts came to limelight. As correctly pointed out by the learned counsel for the plaintiffs, because vast extents of properties are involved in this case, the parties were not sedulous and meticulous in adhering to the punctilious of Court procedures in detailing the description of the properties and due to that, the valuable right of the parties over the property should not be allowed to get lost. The Lower Court simply observed that no clinching evidence adduced before the Court to prove that the properties sought to be added happened to be joint family properties. No doubt, the Court is not enjoined to add any number of new properties at the whims and fancies of the parties. There should be prima facie evidence to display and demonstrate that property sought to be added belongs to the parties to the suit. No doubt, the Court is not enjoined to add any number of new properties at the whims and fancies of the parties. There should be prima facie evidence to display and demonstrate that property sought to be added belongs to the parties to the suit. The learned counsel for the plaintiffs would try to explain and expound by pointing out that the revenue records do stand in the name of the parties to the suit and in such a case, the Court could very well rely upon it. No doubt the revenue records by themselves would not constitute title but at the same time, the significant maxims hereunder should not be lost sight of by the Lower Court. 1. "Res inter alios judicatae nullum aliis praejudicium faciunt."[Matters adjudged in the lawsuits of others do not prejudice those who were not parties to them.] 2. "Res inter alios acta alteri nocre non debet." [Things done between others ought not to injure an outsider (not party to them).] 8. In case if any third party makes any claim over such properties, certainly the judgment/order emerged in this matter would not bind them and simply because of that, all and sundry properties could not also be added in the suit. The Court has to see as to whether there is any prima facie evidence or incontrovertible evidence as of now to add as well as delete certain properties. It is open for the parties concerned to place the revenue records before the Court and also summon the revenue officials to prove about their enjoyment. Over and above that, if there are title deeds, they are also at liberty to produce them. The Court has to strike a balance between the two as otherwise it would lead to a murky situation. The Lower Court observed as though in a separate suit the parties can work out their remedies. I would like to discountenance such view and observe that the partition suit should be comprehensive enough in encompassing all the properties of the parties concerned. Hence I would like to set aside the order of the Lower Court and remit the matter back to the Lower Court so as to enable all the parties to adduce additional documentary as well as oral evidence. Hence I would like to set aside the order of the Lower Court and remit the matter back to the Lower Court so as to enable all the parties to adduce additional documentary as well as oral evidence. In the event of establishing a prima facie case, there could be no embargo for the Lower Court to add even at the final decree stage, those properties and delete certain properties. In respect of the following items which are sought to be deleted, the Advocate for D3-Azhagar, would agree for deletion: 9. Regarding other items to be deleted as per the revision petitioners, viz. there is controversy and it is for the Lower Court to hear both the sides and pass orders suitably. As such, a further thorough probe into the matter is required irrespective of the time limit already fixed by this Court. The parties shall cooperate with the Lower Court for speedy disposal of the matter. 10. With the above observations, the Civil Revision Petitions are disposed of. No costs.