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2022 DIGILAW 627 (MAD)

Kalammal v. Subbian

2022-03-10

G.JAYACHANDRAN

body2022
JUDGMENT (Prayer: Appeal Suit has been filed under Section 96 of Code of Civil Procedure, 1908, praying against the judgment and decree dated 26.06.2014 passed in O.S.No.59 of 2013 on the file of V Additional District and Sessions Court, Coimbatore.) 1. The suit laid for partition of the suit property and to allot 0.46 acres to the plaintiff and put him in separate possession. In the plaint, three items of properties are referred. 2. According to the plaintiff one Ramaiah Gowder who died in the year 1980 leaving behind his wife, four daughters and one son. The defendants are the daughters of Ramaiah Gowder. The plaintiff is grand son of Ramaiah Gowder born to his son Mathaiyan. Ramaiah Gowder died interstate. At the time of his death, Ramaiah Gowder owned a property measuring 2.05 acres of land at Belladhi Village Mettur Taluk. After the demise of Ramaiah Gowder, the said land devolved upon his wife Kariakkal, son Mathaiyan and daughters Kalammal, Rajammal, Sundari and Savithri (who are the defendants 1 to 4) and they were all jointly enjoying the property. For a sale consideration of Rs.9,000/- wife and daughters of Ramaiah Gowder sold 0.46 acres of land on 16.06.1999 in S.No.103/2 of Belladhi Village, Mettur Taluk to the plaintiff and put the plaintiff in possession of the said land. In the said sale deed, one of the sharer Mathaiyan S/o.Ramaiah Gowder was not a party. The said sale deed came to be challenged as void in a partition suit filed in O.S.No.131 of 1999 on the file of District Munsif, Mettupalayam by the wife and daughter of Mathiyan Son of Ramaiah Gowdar, who died in the year 1999. In that suit, the plaintiff in the present case was arrayed as 6th defendant. When the said partition suit was pending, Kariakkal, who is one of the vendor of the plaintiff died. After her death, her daughters, who are defendants 2 to 5 in the suit O.S.No.131 of 1999 entered into a compromise with the plaintiff and a final decree was passed on 11.11.2010. In the compromise decree, the vendors of the plaintiff herein were directed to workout with the plaintiff herein in respect of the sale deed executed by them for 0.46 cents of land in S.No.103/2 without the knowledge and consent of the other co-owner Mathaiyan. 3. In the compromise decree, the vendors of the plaintiff herein were directed to workout with the plaintiff herein in respect of the sale deed executed by them for 0.46 cents of land in S.No.103/2 without the knowledge and consent of the other co-owner Mathaiyan. 3. According to the plaintiff, from out of the property left by Ramaiah Gowdar in three survey numbers viz., S.F.No.121/2 = 0.70Ac, S.F.No.107/1 = 0.75Ac and S.F.No.103/2 = 0.60Ac all in Belladhi Village, Mettupalayam Taluk. As per the final decree passed in O.S.No.131 of 1999, the defendants 1 to 4 were given their respective shares. Part of the suit schedule properties were jointly allotted to the defendants from the portion allotted to the defendants 1 to 4, the plaintiff is entitled for 0.46 cents which he has purchased from defendants 1 to 4 and their mother Kariakkal on 16.06.1999. Therefore, the present suit for division of the suit property and allot an extent of 0.46 cents and put him in possession. 4. The suit is resisted by the defendants stating that the plaintiff was the party in the earlier partition suit in O.S.No.131 of 1999 on the file of District Munsif, Mettupalayam, hence he is debarred from filing the present suit. Since the plaintiff has allowed the suit to be decreed and he is estopped from filing a fresh partition suit. Admitting the execution of the sale deed to an extent of 0.46 cents in S.No.103/2, the defendants contend that the plaintiff ought to have ascertained his right in the earlier suit in O.S.No.131 of 1999 when the compromise decree was passed. Referring the compromise decree, the defendant contends that the liberty given to the plaintiff under a compromise decree directing him to work out his remedy with the defendants 1 to 5 will not confer right to the plaintiff to claim 0.46 cents from the portion of the land allotted to these defendants as per compromise decree. The plaintiff purchased 0.46 cents of land in S.No.103/2 with specific boundaries but after the compromise decree, the defendants were allotted 15 cents only in the said land in S.No.103/2. The boundaries differ from the boundary of the land sold. The plaintiff a party in the above proceedings, ought not to have allowed to pass the compromise decree. The plaintiff purchased 0.46 cents of land in S.No.103/2 with specific boundaries but after the compromise decree, the defendants were allotted 15 cents only in the said land in S.No.103/2. The boundaries differ from the boundary of the land sold. The plaintiff a party in the above proceedings, ought not to have allowed to pass the compromise decree. Having allowed the Court to pass a final decree in a specific manner, the plaintiff is estopped in reagitating the allotment of share. Therefore, the suit is barred under Order 2 Rule 2 of C.P.C. 5. Based on the pleadings, the trial Court framed the following issues:- (i). Whether the plaintiff is entitled to claim partition of his 0.46 cents in all the three items, when he admittedly purchased only in S.No.103/2? (ii). When a partition suit was filed in O.S.No.131 of 1999 and he failed to work out his remedies whether he can work out his remedies in 2013? (iii). Whether the plaintiff is estoppel from filing the suit? (iv). Whether the suit is barred under Order 2 Rule 2 of C.P.C? (v). Whether the suit is bad for non-joinder of parties as the portion purchased by the plaintiff was allotted to Chandra & Vanmathi? (vi). Whether the plaintiff was in joint possession and paid the correct Court Fee? (vii). Whether the plaintiff is entitled to the relief as prayed for? (viii). To what other relief? 6. Before the trial Court, one Subbaiyan the plaintiff was examined as P.W.1. 8 Exhibits (Ex.A.1 to Ex.A.8) were marked. On the side of the defendant, no document and no witness were relied. 7. The Trial Court after appreciating the evidence let in by the parties and the arguments placed by the respective counsels held that the plaintiff right to file the suit will not get extinguished by efflux of time or non-allotment of the property he purchased from the defendants in view of the compromise decree and allocation of share in a different land and therefore, allowed the suit. 8. This appeal is filed by the defendants on the ground that the Court below failed to appreciate the fact that the plaintiff is estopped from claiming 0.46 cents of land from the defendants herein based on the sale deed executed by them before passing of the compromise decree in the partition suit. 8. This appeal is filed by the defendants on the ground that the Court below failed to appreciate the fact that the plaintiff is estopped from claiming 0.46 cents of land from the defendants herein based on the sale deed executed by them before passing of the compromise decree in the partition suit. The suit property purchased by the plaintiff not allotted in entirety to the defendants and more so, when the plaintiff is aware that only 0.15 cents in S.No.103/2 allotted to the defendants, the suit ought to have been dismissed. Further, the suit is bad for non-joinder of necessary parties, since the plaintiff in the earlier suit not impleaded. The Court below failed to consider the fact that value of the property in S.Nos.107/1 and 103/2 are different and the sale deed for 0.46 cents in S.No.103/2 cannot be substituted and extended for the other survey numbers solely because the vendor had no title for 0.46 cents of land. Above all, the suit is hopelessly barred by limitation, since same was filed after 14 years from the date of execution of the sale deed in favour of the plaintiff. 9. The Learned Counsel for the appellant states the plaintiff herein ought to have ascertained his right and claim in the previous suit in O.S.No.131 of 1999. Having allowed the Court to pass a compromise decree leading to extinguishment of right of his vendor in S.No.103/2 cannot belatedly make a substituted claim. 10. The learned Counsel appearing for the respondent submit that the plaintiff herein has purchased 0.46 cents of land from the defendants in S.No.103/2. In the earlier suit O.S.No.131 of 1999 the compromise was arrived after giving up the plaintiff herein. He is not a party to the compromise memo. The compromise decree was passed protecting the right of the plaintiff herein to work out his remedy against the defendants 1 to 4 in the manner known to law. In the earlier suit O.S.No.131 of 1999 the compromise was arrived after giving up the plaintiff herein. He is not a party to the compromise memo. The compromise decree was passed protecting the right of the plaintiff herein to work out his remedy against the defendants 1 to 4 in the manner known to law. The appellant herein cannot after entering into a compromise agreeing the execution of the sale deed in favour of the plaintiff and will work out with the plaintiff regarding the sale deed, cannot take a plead that the plaintiff is estopped to file a suit and the present suit is hit by Order 2 Rule 2 of C.P.C or plead that since 0.46 cents of land in S.No.103/2 not allotted to them and only 15 cents is allotted to them, the sale deed is unenforceable. 11. Further, the learned counsel also contend that the suit is neither barred by limitation nor hit by order 2 Rule 2 of C.P.C. The sale agreement in favour of the plaintiff was executed by defendants 1 to 4 on 16.06.1999. In the suit O.S.No.131 of 1999 filed by legal heirs of Mathaiyan, a final decree was passed on 11.11.2010 wherein a specific clause in the memo of compromise which forms part of the decree clearly gives a liberty to the plaintiff herein to work out his remedy against these defendants based on the right accrued on him under the sale deed dated 16.06.1999. When liberty is given to the party to work out the remedy separately and the subsequent suit is not barred. Further, the right of the vendor in the suit property got crystallised only on passing of the final decree and the division of joint family property by metes and bounds. 12. The plaintiff, who is entitled to get the property from the share allotted to his vendor has to be necessarily wait till the division of joint family property by metes and bounds and therefore, the cause of action for the plaintiff for the present suit arose only on 11.11.2010 and the suit filed on 06.12.2011 is well within the period of limitation. Point for determination:- Whether the plaintiff is estopped from filing the present suit in hand or whether the suit is barred by limitation? 13. This is a not a regular suit filed for division of property. Point for determination:- Whether the plaintiff is estopped from filing the present suit in hand or whether the suit is barred by limitation? 13. This is a not a regular suit filed for division of property. The peculiar facts of this case is that the plaintiff herein has purchased 0.46 cents of land from the joint owners in S.No.103/2 excluding one. Later, the person not a party to this sale deed filed suit for partition in which compromise decree had been passed. Out of 0.60 cents of land in S.No.103/2, the plaintiff vendor had sold to him 0.46 cents of land. Under compromise deed they were allotted only 15 cents. The sale done by the vendors in respect of their share has become uncertain due to the subsequent suit for partition filed by one of the sharer, who had an ostensible share in the property. 14. In the earlier partition suit filed by legal heirs of Mathaiyan though this plaintiff has arrayed as one of the defendants, when compromise decree entered between the parties, the plaintiff was consciously given up and same was recorded and only thereafter, compromise petition was filed by the plaintiff and the defendants 1 to 4 in the present suit. 15. From the compromise decree, this Court finds that the property under S.No.103/2 shown as item No.3 measuring 0.60 cents of land. The decree say that the sale deed on 16.06.1999 executed by the defendants 1 to 4 i.e., Kalammal, Rajammal, Sundari, Savithiri, who are the wife and daughters of Subbaiyan will not bind the plaintiff namely Chandra and Vanmathi wife and daughters of Mathaiyan or the share allotted to them under the compromise decree. Also, the Court has specifically stated that the defendants 1 to 4 i.e., vendors of this plaintiff has to face the consequence and settle the matter with their purchaser. Thus, from the conduct of the appellants, it is clear that they have sold 0.46 cent of land in S.No.103/2 to the plaintiff on 16.06.1999 under Ex.A.1. Also, the Court has specifically stated that the defendants 1 to 4 i.e., vendors of this plaintiff has to face the consequence and settle the matter with their purchaser. Thus, from the conduct of the appellants, it is clear that they have sold 0.46 cent of land in S.No.103/2 to the plaintiff on 16.06.1999 under Ex.A.1. Later, when one of the sharer filed a partition suit even though initially the plaintiff was arrayed as one of the defendant knowing about the alienation in favour of the plaintiff instead of arriving at a compromise excluding this property, the defendants have agreed to settle the dispute with the plaintiff and in respect of the sale deed dated 19.06.1999 has retained their right to an extent of 15 cents alone in S.No.103/2. Now, in the subsequent suit, they cannot take a plea of estoppel or limitation. 0.15 cents of land which is allotted to them under the compromise decree even otherwise has to be handed over to the plaintiff, since the defendants have already alienated their right in favour of the plaintiff. The compromise decree only feeds the grand. 16. The Trial Court conscious of the fact that the vendor i.e., defendants cannot alienate more than 0.15 cents in S.No.103/2. Though they have sold 0.46 cents and entered into a compromise without reserving their right in S.No.103/2 atleast to the sold extent, after the compromise deed, liable to give land in other survey number equally to the value of 0.19 cents in S.No.103/2. Therefore, the preliminary decree passed by the Trial Court to the effect that 0.15 cents of land in S.No.103/2 allotted to the defendants in the compromise decree has to be handed over to the plaintiff and land equal to the value of 0.19 cents in S.No.103/2 should be given from the other land allotted to them. 17. Hence, the plaintiff has purchased the property prior to the suit for partition is not estopped from filing the suit for an appropriate remedy merely because he was arrayed as defendants in the previous suit and filed his written statement along with the other defendants will not bind him in any way when the parties thought fit to exclude him in the lis and enter into a compromise. More so, even in the compromise, the right of the plaintiff which has accrued under sale deed dated 16.06.1999 not been taken away but implicitly protected based on the undertaking given by the defendants herein that they will work out with the plaintiff independently. 18. In view of the above fact, this Court finds that the trial Court has passed appropriate order based on law and equality, which requires no interference by the Trial Court. Accordingly, the Appeal Suit is dismissed. Considering the relationship between the parties, there shall be no order as to costs.