Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2521 (MAD)

Karuppanna Gounder v. Palaniammal

2014-08-11

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. The defendant in a suit for partition and delivery of possession, has filed this Second Appeal challenging the judgment and decree dated 23.12.2004 passed by the learned Subordinate Judge, Namakkal, in A.S. No. 251 of 1997 wherein and by which the judgment and decree dated 30.04.1997 passed by the learned District Munsif - cum -Judicial Magistrate, Paramathi, in O.S. No. 236 of 1996 granting decree for partition, was confirmed. 2. The plaintiff / sole respondent herein filed O.S. No. 236 of 1996 seeking to appoint Commissioner and divide the 'B' Schedule properties into two equal shares and all such shares separately and for delivery of possession. 3. A brief narration of facts necessary for appreciating the contentions raised herein may be set out. According to the plaintiff, he purchased the 'A' schedule property, which is a part of 'B' schedule property, from one Sankarandi Gounder, brother of the defendant, by virtue of sale deed dated 08.11.1989. It is averred that since there was no partition previously, the defendant had issued notice to the plaintiff even prior to the purchase claiming half share in 'B' schedule properties for which the plaintiff gave a suitable reply. While so, after purchase of the property, the plaintiff filed a suit O.S. No. 283 of 1990 before the Court of District Munsif, Namakkal, for declaration and permanent injunction against the defendant and the same was dismissed with an observation that the plaintiff can file a suit for partition. Accordingly, the plaintiff issued a notice to the defendant on 24.02.1992 for partition of the suit property for which the defendant sent a reply with certain allegations. Based on the strength of the judgment in the earlier suit, the plaintiff filed O.S. No. 236 of 1996. 4. Resisting the suit, the defendant filed written statement denying all the allegations stated in the plaint. According to him, since Sankarandi Gounder, who is a necessary party, has not been impleaded as party to the suit, the suit itself is not maintainable. 5. It is seen that pending the suit, the plaintiff died and hence, his legal heirs were impleaded as respondents 1 and 2 as per order dated 16.3.2004 in I.A. No. 7 of 2004. 6. The trial Court, on the basis of the above pleadings, proceeded with the trial of the suit. The plaintiff examined himself as P.W.1 and marked 5 documents, viz., Exs. 6. The trial Court, on the basis of the above pleadings, proceeded with the trial of the suit. The plaintiff examined himself as P.W.1 and marked 5 documents, viz., Exs. A.1 to A.5. To nullify the evidence adduced on behalf of the plaintiff, the defendant examined himself as D.W.1 and marked Ex. B.1 series. 7. The learned trial Judge, appreciating the pleadings, as well as scanning the materials, found that the plaintiff has proved his right by filing Ex. A.1 and accordingly, decreed the suit as prayed for, by judgment dated 30.4.1997, holding that the plaintiff is entitled for partition of the suit 'A' and 'B' schedule properties. As against the same, the defendant preferred appeal in A.S. No. 251 of 1997. The Lower Appellate Court, on appreciation of the evidence and the materials available thereon, confirmed the decree of the trial Court dismissing the First Appeal. Feeling aggrieved, the defendant is before this Court with the present Second Appeal. 8. At the time of admission of this Second Appeal, the following substantial questions of law were formulated for consideration:- (i) Whether the Courts below are correct in decreeing the suit, when the plaintiff has miserably failed to add his vendor as party in the present suit; in such circumstances, is the present suit bad for non-joinder of necessary and property party? (ii) Whether the present suit for partition is maintainable in law, the plaintiff had chosen to add only one of the joint family property alone to be partitioned in the above suit and leaving some of other joint family properties which are yet to be partitioned among parties? 9. Heard Mr. P. Mathivanan, learned counsel appearing for the appellant / defendant and perused the records. 10. It is admitted fact that the suit properties originally belonged to the defendant Karuppanna Gounder and his brother Sankarandi Gounder ancestrally and the said Sankarandi Gounder sold the suit 'A' Schedule property on 08.11.1989 under Ex. A.1 sale deed in favour of the plaintiff. From the materials available on record, it is seen that based on the said title deed, the plaintiff had earlier filed suit O.S. No. 283 of 1990 on the file of District Munsif, Namakkal, for the relief of declaration and permanent injunction and the said suit was dismissed by judgment and decree dated 27.9.1991, which are marked as Exs. From the materials available on record, it is seen that based on the said title deed, the plaintiff had earlier filed suit O.S. No. 283 of 1990 on the file of District Munsif, Namakkal, for the relief of declaration and permanent injunction and the said suit was dismissed by judgment and decree dated 27.9.1991, which are marked as Exs. A.2 and A.3, with an observation that the plaintiff can seek his remedies by way of filing a suit for partition. Accordingly, the plaintiff has filed the present suit. 11. From a perusal of Ex. A.1 sale deed dated 08.11.1989, it can be seen that the plaintiff seems to have purchased the property with four specific boundaries and one of the boundary also refers to the defendant's land on the west. However, the defendant / appellant, in paragraph 14 of the written statement, had pleaded to the following effect:- (“Language”) Therefore, it is clear that there is no dispute as to the title of the plaintiff as per Ex. A.1 and as such, the plaintiff is entitled to a decree for partition. 12. As regards the other defences taken by the learned counsel appearing for the appellant / defendant, viz., partial partition and non-joinder of necessary parties, this Court feels that the same are only to be rejected as not sustainable as the plaintiff is a stranger to the family and a purchaser from one of the sharers, viz., Sankarandi Gounder, who has got no right in the 'A' and 'B' schedule properties after the sale. Further, though the defendant has contended that the suit is bad for non-joinder of the vendor Sankarandi Gounder as a party, it is to be noted that a person has right to protect his possession against any person who does not prove a better title. In the instant case, the plaintiff has established his possession as on the date of filing of suit. The defendant, without any claim of title to the property, is simply denying the plaintiff’s title. 13. It is a settled principle that scope for interference with concurrent finding of fact while exercising jurisdiction under Section 100 CPC is very limited. Further, re-appreciation of evidence is not permissible unless the Courts below had misdirected themselves in appreciating the facts or placed the onus on the wrong party. 13. It is a settled principle that scope for interference with concurrent finding of fact while exercising jurisdiction under Section 100 CPC is very limited. Further, re-appreciation of evidence is not permissible unless the Courts below had misdirected themselves in appreciating the facts or placed the onus on the wrong party. In my opinion, both the Courts below have clearly recorded a finding on the claim of title to the suit property made on behalf of the plaintiff. As the plaintiff has established his right and title to the suit properties and since the Courts below, being the final fact finding authorities, have held in favour of the plaintiff based on material records, and this being a Second Appeal filed under Sec.100, C.P.C., no question of law, much less substantial question of law, would arise for consideration. There are no error of jurisdiction or law or perversity on the face of the records. 14. Finally, learned counsel appearing for the appellant / defendant prayed for allotment of the share of the property which he is in possession and had made improvements. The defendant has also pleaded to that effect as mentioned in the above paragraph, viz., paragraph 14 of the written statement. 15. At this juncture, it is to be pointed out that the appeal is preferred challenging only the preliminary decree. No doubt, the preliminary decree only declares the share of the parties whereas the final decree is a further adjudication by metes and bounds. As such, the request of the defendant / appellant can be considered only in the final decree proceedings. Therefore, this Court leaves it open to the appellant / defendant to get the portion of the share, where he is in possession and made improvements, allotted to his share in the final decree proceedings. The appellant/defendant is also at liberty to take out appropriate application for separation of his share. In view of the above discussions relating to principles under Section 100 CPC, I have no hesitation to hold that no interference is warranted to the concurrent findings of the Courts below. The Second Appeal fails and the same stands dismissed with the above observation. In view of the above discussions relating to principles under Section 100 CPC, I have no hesitation to hold that no interference is warranted to the concurrent findings of the Courts below. The Second Appeal fails and the same stands dismissed with the above observation. The judgment and decree dated 30.04.1997 passed by the learned District Munsif - cum -Judicial Magistrate, Paramathi, in O.S. No. 236 of 1996 granting decree for partition, as affirmed by the judgment and decree dated 23.12.2004 passed by the learned Subordinate Judge, Namakkal, in A.S. No. 251 of 1997, is confirmed. However, in the circumstances of the case, there shall be no order as to costs. Consequently, connection Miscellaneous Petition is closed.