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2017 DIGILAW 966 (MAD)

Palanivel v. Perumayee

2017-04-07

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the preliminary decree passed by the Principal District Judge, Namakkal dividing the suit properties into 12 equal shares, the present appeal is filed by the appellant. 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.4 of 2011 before the learned principal district Judge, Namakkal for division of the suit properties into 12 equal shares and allot eleven shares to the plaintiffs. 4. After contest, preliminary decree was passed as prayed for by the plaintiffs. 5. The brief facts of the case of the plaintiffs are as follows: The suit property was owned by the 1st plaintiff's son Elango and the defendant jointly. Subsequent to the death of the said Elango, the plaintiffs, being legal heirs, became the joint owners of the suit property. The defendant filed a suit in O.S.No.307 of 2000 for permanent injunction and the same was decreed. As against the same, the plaintiffs preferred an appeal and the same was dismissed and thereby reached finality. Since, subsequent to the death of the said Elango, the plaintiffs and the defendant became co-owners of the suit property, the plaintiff is entitled to 11/12 share in the suit property. Therefore, the plaintiffs demanded for a division of the suit property, as per the observations made in the judgment in A.S.No.6 of 2002. Since the same ended in vain, the plaintiffs filed the present suit. 6. The brief averments made in the written statement filed by the defendant are as follows: While admitting the relationship, the defendant denied the allegation that both the 1st plaintiff's son Elango and the defendant are in joint possession and enjoyment of the property in S.No.269/2B. It is denied that the defendant is having only 1/12th share. It is stated that the defendant is in possession and enjoyment of 40 cents of land and he also filed suit in O.S.No.307 of 2000 and obtained permanent injunction and the same reached finality. Thus, the defendant prayed for dismissal of the suit. 7. Based on the above pleadings, the trial Court has framed the following issues: 1. Whether the plaintiff is entitled to partition of 11/12th share in the properties? 2. To what relief if any the plaintiff is entitled to? 8. On the side of the plaintiffs, PW1 was examined and Ex.A1 was marked. 7. Based on the above pleadings, the trial Court has framed the following issues: 1. Whether the plaintiff is entitled to partition of 11/12th share in the properties? 2. To what relief if any the plaintiff is entitled to? 8. On the side of the plaintiffs, PW1 was examined and Ex.A1 was marked. No oral and documentary evidence adduced on the side of the defendant. 9. The learned counsel for the appellants/defendants would contend that the suit claiming partition for 2 acre 20 cents is not maintainable, as the appellants are in possession of 40 cents of the suit property for time memorial and in respect of which, permanent injunction was also granted in their favour. Therefore, the learned counsel submitted that the partition suit claiming 2 acres 20 cents is not maintainable. 10. Per contra, it is the contention of the learned counsel for the respondents/plaintiffs that merely because the defendants/appellants are in possession of the property that itself will not be a bar to maintain the partition suit, as adverse possession has not been established. Therefore, the Trial Court granting the preliminary decree is well reasonable and it does not require any interference. 11. In the light of the above submission, now the point that arises for consideration in this appeal is as to whether the instant suit claiming partition is barred in view of the decree of permanent injunction granted in respect of 40 cents in favour of defendants/appellants. 12. The suit is filed for partition. On the basis of the observation made by the Subordinate Court, Namakkal in A.S.No.6 of 2002, the trial Court has passed preliminary decree dividing the suit property into 12 equal shares and to allot 11 such shares to the plaintiffs. The learned trial Judge, taking into consideration the oral evidence of P.W.1, which was not even been cross examined by the defendants, has granted preliminary decree. 13. On a careful perusal of Ex.A1, the certified copy of judgment in A.S.No.6 of 2002, it is clear that the suit is filed for bare injunction in respect of 40 cents filed by the defendants appellants, as against one Sundara Gounder, Elango and Narasimamoorthy. The District Munsif has decreed the said suit and the appeal being A.S.No.6 of 2002 filed against the said judgment and decree was dismissed. The District Munsif has decreed the said suit and the appeal being A.S.No.6 of 2002 filed against the said judgment and decree was dismissed. However, in paragraph 13 of the said appeal, which was filed for grant of permanent injunction, the learned Sub Judge has made an observation that the plaintiffs are also entitled to 11/12 shares in the suit properties. Only on the basis of the above observation, the suit for partition is filed for dividing the suit property into 12 equal shares and allot 11 such share to the plaintiffs. 14. It is to be noted that in the very same judgment, learned Subordinate Judge, taking into consideration of the Partition Deed dated 22.11.1985, has held that 40 cents was allotted to the defendant/respondent by way of documentary evidence as he proved his possession by filing Exs.P2 and P3. It is further held that the plaintiffs have derived title to the property by way of partition suit. However, except Ex.A1, certified copy of judgment in AS.No.6 of 2002, no documents, whatsoever field for such partition. 15. The Court below, on the basis of some observation made by the sub judge in the aforementioned appeal, has decreed the suit for partition without affording any opportunity to the defendants/appellants to adduce evidence. Admittedly, the defendant has not cross examined the plaintiffs. Further, no evidence was adduced on the side of the plaintiffs as to how they are entitled to 11/12 share in the suit properties. There was no discussion in this regard by the trial judge. That apart, in the previous suit filed for bare injunction, the parties have adduced several documentary evidence viz., the partition deed 22.11.1985, chitta, sale deeds dated 08.5.2000, 7.3.1991 and 12.7.2000 settlement deeds dated 08.5.2000 and 19.7.2000 etc. But none of the documents have been filed in this case. 16. As already discussed above, there are two findings in A.S.No.6 of 2002. In paragraph 11, it is held that the plaintiff in the suit/respondent in A.S.No.6 of 2002, i.e., the appellant herein, has established not only possession but also allotment of the property in his favour, whereas in another paragraph, it is observed that the plaintiffs herein is entitled to 11/12 share. There was no discussion with regard to issue No.1 in proper perspective. Similarly, no documents, whatsoever field to establish the rival contentions. There was no discussion with regard to issue No.1 in proper perspective. Similarly, no documents, whatsoever field to establish the rival contentions. Therefore, this Court is of the view that judgment and decree of the trial Court is liable to be interfered with. 17. In the result, the appeal is allowed. Accordingly, the judgment and decree dated 11.01.2012 in O.S.No.4 of 2011 is set aside and the matter is remitted back to the trial Court for fresh consideration. The trial Court shall afford opportunity to the parties concerned to let in both oral and documentary evidence and decide the case, by framing appropriate issues on the basis of the pleadings and also keeping in view of the earlier suit between the parties, within a period of 6 months from the date of receipt of a copy of this judgment. No costs. 18. Insofar as the Miscellaneous Petition No. 2 of 2012 filed by the appellant qua reception of additional documents is concerned, the learned counsel for the appellants/defendants submitted that the appellants/defendants filed a suit in O.S.No.307 of 2000 on the file of the District Munsif Court, Namakkal for permanent injunction against the husband of the 1st plaintiff in respect of sale in S.No.269/B and the same was decreed. Against which, appeal was filed in A.S.No.6 of 2002 and the same was also dismissed and the said judgment in A.S.No.6 of 2002 attained finality. It is submitted that since the plaintiffs' demand for division of properties was in vain in view of the judgment in A.S.No.6 of 2002, the present suit has been filed claiming 11/12 share i.e. 2 acre 20 cents, which is not maintainable. Since the judgment and decree in O.S.No.306 of 200 and A.S.No.6 of 2002 are necessarily to be marked to prove the above facts, the learned counsel for the appellants/defendants prayed for allowing the application. 19. The learned counsel for the respondents/plaintiffs, has no objection for marking the above documents. 20. Since the rights of the parties are incidentally decided in the above suit, this Court is of the view that ends of justice would be met by allowing this application. Accordingly, Miscellaneous Petition No.2 of 2012 stands allowed and the documents filed by the appellant are ordered to be marked as Exs.B1 to B3.