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2017 DIGILAW 1303 (MAD)

N. Karuppusamy v. K. N. Devanathan

2017-04-28

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the dismissal of the suit for partition, the present appeal has been filed by the plaintiffs. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. The plaintiffs filed a suit in O.S.No.12 of 2008, before the learned Principal District Judge, Erode to divide the suit properties into 2 equal shares and allot one such share to the plaintiffs. 4. After contest, the suit was dismissed on the ground of non joinder of necessary parties. 5. The brief facts of the case of the plaintiffs are as follows: The suit property was originally purchased by one Nachimuthu, father of the 1st plaintiff in the year 1970. The said Nachimuthu died leaving behind the 1st plaintiff and his brother one Rangasamy. Therefore, both of them are entitled to get equal share in the suit properties. The 1st plaintiff and his brother Rangasamy have jointly sold an extent of 43 cents out of 88-7/48 to the 1st defendant under a registered sale deed dated 26.12.1995. The 1st defendant, who is doing real estate business, had purchased several properties surrounding the suit properties. The plaintiff's brother Rangasamy has sold = share out of 45-7/48 for paltry amount. Armed with the above sale deed, now the 1st defendant executed a Power of Attorney deed in favour of the 2nd defendant and the 2nd defendant had sold several sites around the suit properties. In the meantime, the plaintiffs entered into a sale agreement with one S.Venkatasamy of Erode with regard to their share in the suit properties. After the sale agreement, the plaintiffs came to know that the defendants were attempting to annex the suit properties along with their land purchased around the suit properties. Hence, the suit. 6. The brief averments made in the written statement filed by the 2nd defendant are as follows: It is the contention of the 2nd defendant that he has obtained Power of Attorney for several lands from the 1st defendant and others. He laid out by forming roads in about 55 acres named Cauvery Nagar and has sold out the plots to third parties, who are in possession and enjoyment of the same. The field R.S.No.49 have been divided into plots and sold to 172 persons on 04.10.2006. He laid out by forming roads in about 55 acres named Cauvery Nagar and has sold out the plots to third parties, who are in possession and enjoyment of the same. The field R.S.No.49 have been divided into plots and sold to 172 persons on 04.10.2006. Similarly, the fields in R.S.No.7 and 8 have also been divided into plots and sold to 95 persons from 25.02.2004 to 12.11.2005. The said purchasers are in possession and enjoyment of their respective plots from the date of their respective purchase. Even assuming that the plaintiffs have some semblance of title, they have lost that by efflux of time. Except the extent of land sold to the 1st defendant the said late Nachimuthu and his sons have lost title by adverse possession. It is also denied that the defendants are attempting to annex the suit properties along with their land purchased around the suit properties. Hence the defendants prayed for dismissal of the suit. 7. Based on the above pleadings, the trial Court has framed the following issues: 1. Whether the plaintiffs are entitled to the relief as claimed in the plaint? 2. Whether the 2nd defendant derived title by adverse possession as claimed? 3. Whether the sale agreement dated 08.5.2007 executed by plaintiffs and S.Venkidusamy is true? 4. Whether the suit is bad for non joinder of necessary parties as alleged? 5. To what relief if any the plaintiffs are entitled to? 8. On the side of the plaintiffs, P.W.1 and P.W.2 were examined and Exs. A1 to A15 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs. B1 to B4 were marked. 9. Though the trial Court has found that the plaintiffs are entitled to get share in the suit properties, it dismissed the suit on the ground of non joinder of necessary parties. Against which the plaintiffs have preferred the present appeal. The defendants have not filed any cross appeal with regard to the finding of the trial Court. 10. Mr. N. Manokaran, learned counsel for the appellants/plaintiffs has submitted that the plaintiffs are entitled to get share in the suit properties. It is further submitted that no details have been given in the written statement with regard to the subsequent purchasers. The defendants have not filed any cross appeal with regard to the finding of the trial Court. 10. Mr. N. Manokaran, learned counsel for the appellants/plaintiffs has submitted that the plaintiffs are entitled to get share in the suit properties. It is further submitted that no details have been given in the written statement with regard to the subsequent purchasers. Therefore, it is the contention of the learned counsel for the appellants/ plaintiffs that the judgment and decree of the trial Court dismissing the suit merely on the ground of non joinder of necessary parties is not sustainable and the same warrants interference of this Court. Thus, the learned counsel prayed for allowing the appeal. In support of his arguments, the learned counsel has placed reliance on the judgments reported in 1999 (III) CTC 57 (RM.AL. Visalakshi Achi and two others v. RM.Seenivasan and three others) and 2009 (3) CTC 760 (Balamani and another v. S.Balasundaram). 11. Per contra, Mr. A.K.Kumarasamy, learned Senior Counsel for the respondents/defendants vehemently opposed the appeal contending that the defendants have clearly pleaded in the written statement that the suit properties have been divided into several plots and sold to several persons and despite the same, the plaintiffs have failed to implead all the said purchasers. Hence, it is the contention of the learned Senior counsel that the Trial court, taking into consideration the nature of the property and considering the large extent of land available, has rightly held that the suit is not maintainable for non joinder of necessary parties. According to the learned Senior counsel, identity of property itself has not been established by the plaintiffs. Therefore, the judgment and decree of the trial Court does not warrant interference. In support of his arguments, the learned Senior counsel has relied upon the judgments of this Court in A.Ramachandra Pillai v. Valliammal [ (1987)100 L.W. 486 ] and Kanakarathanammal v. Loganatha Mudaliar and another (AIR 1965 SCC 271). 12. In the light of the above submissions, the points that arise for consideration in this appeal are: “(1) Whether the plaintiffs are entitled to partition as prayed for? (2) Whether the suit is not maintainable in view of the non joinder of necessary parties?” Point Nos. 1 and 2: 13. 12. In the light of the above submissions, the points that arise for consideration in this appeal are: “(1) Whether the plaintiffs are entitled to partition as prayed for? (2) Whether the suit is not maintainable in view of the non joinder of necessary parties?” Point Nos. 1 and 2: 13. It is the case of the plaintiffs that originally, the 1st plaintiff's father Nachimuthu, had purchased an extent of 88-7/48 cents by way of sale deed dated 11.06.1970. The 1st plaintiff's father, i.e. the said Nachimuthu, died leaving behind him and his brother Rangasamy. The 1st plaintiff and the said Rangasamy have jointly sold an extent of 43 cents on 26.12.1995. Therefore, the 1st plaintiff and the said Rangasamy are entitled equal moieties in the remaining 45-7/48 cents. The plaintiff's brother, Rangasamy has sold = share out of the said 45-7/48 to the 1st defendant. 14. Whereas it is the main contention of the defendants that the property has been divided into plots and sold to various persons and that the 1st plaintiff has lost his title by adverse possession. Ex.A2, sale deed dated 26.12.1995 shows that the 1st defendant had purchased an extent of 43 cents from the 1st plaintiff, his brother and his children. Under Ex.A1, father of the 1st plaintiff and Rangasamy, i.e. Nachimuthu, purchased 88-7/48 cents out of 10.21acres in which = of the properties were sold to his two sons under Ex.A2. Ex.A2 also shows that in the remaining 45-7/48 cents, the plaintiff and his brother had equal shares. It is stated by the 1st plaintiff that out of 45 -7/48 cents, his brother and himself areeach entitled to 22 55/96 cents. 15. The Trial court, taking into consideration all these facts, has held that the plaintiffs are entitled to get shares in the suit properties. The said finding of the Trial court has not been disputed by the defendants. The only contention of the defendants is that since the property has already been sold to several persons in the same survey field, without impleading all the purchasers, the suit is not maintainable. 16. Though such stand has been taken by the defendants, in the written statement, they have not given particulars of all the parties to whom the property has been sold. 16. Though such stand has been taken by the defendants, in the written statement, they have not given particulars of all the parties to whom the property has been sold. Without providing the particulars of other purchasers, now the defendants cannot contend that the suit has to fail because of non joinder of necessary parties. It is the duty of the defendants to bring on record, who are all other purchasers in the suit properties. If the defendants have properly pleaded such particulars in the written statement, then it could be stated that the suit has to fail due to non impleadment of such purchasers. 17. In view of such circumstances, this Court is of the view that as per Ex.A1, original sale deed, the plaintiffs are entitled to 22- 55/96 cents in the suit property. 18. In Kanakarathanammal v. V.S.Loganathan (cited supara), the Hon`ble supreme Court has held that the suit has to fail since all the co-sharers have not been made as parties. Similarly, in A.Ramachandra Pillai v. Valliammal (cited supra) this Court has held that failure to implead all the sharers in the partition suit will result in suit being dismissed for non joinder of necessary parties. 19. In the latest judgment, in Balamani and another v. S.Balasundaram (cited supra), this Court while dealing with the similar situation has held that necessary parties could be added at any stage of proceedings. This Court further held that the partition suit should not be dismissed by High Court simply because of non-joinder of necessary parties and opportunity should be given to the party concerned to implead necessary parties. Likewise, in RM.AL. Visalakshi Achi v. RM. Seenivasan and three others (cited supra) this Court has held that the person, who raised such plea, shall give all details in the written statement. A mere vague statement that suit is not maintainable for non joinder of necessary parties would not amount to taking specific plea. 20. Having regard to the above judgments and also having regard to the fact that the plaintiffs are entitled to share in the suit properties to an extent of 22-55/96 cents in the total extent in various S.R field and that no specific boundaries have been mentioned in the plaint, this Court is of the view that the share of the plaintiffs cannot be identified in the absence of other purchasers in the suit survey field. For partitioning all these plaintiffs' share, other purchasers in the entire extent of properties are also necessary parties and hence, opportunity should be given to the plaintiffs to implead such purchasers in the suit. Therefore, this Court holds that the judgment of the trial Court in dismissing the suit on the ground that the suit is not maintainable for non joinder of necessary parties is liable to be set aside and the matter has to be remanded back to the trial Court for re-trial of the suit for effective determination of the plaintiffs' share in the suit properties. In the result, the appeal is allowed by setting aside the judgment and decree of the trial Court and the matter is remanded back to the Trial Court for re-trial. The Trial court shall decide the suit, after framing appropriate issues and giving opportunity to all the parties concerned, including the purchasers to be impleaded, and dispose of the same, as expeditiously as possible, by conducting trial on day to day basis. However, there shall be no order as to costs. MP.No.1 of 2012 is closed.