S.Palani Alais Palanisamy v. Rajendran

JUDGEMENT The plaintiff is the appellant before this Court. This Second Appeal has been filed challenging the judgment and decree passed in A.S.No.11 of 2017 on the file of the Additional District Judge, Mayiladuthurai in and by which the learned Judge has reversed the judgement and decree in O.S.No.94 of 2014 on the file of the Principal Sub Judge, Mayiladuthurai.

¶2To appreciate the case on hand it is necessary to set out the respective pleadings of the parties and while referring to the parties they shall be referred to in the same ranking as before the Trial Court, namely, the Principal Sub Judge, Mayiladuthurai. Plaintiff's case

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¶3The plaintiff has filed the suit O.S.No.94 of 2014 on the file of the Principal Sub Judge, Mayiladuthurai for a partition and separate possession of his 1/3rd share in the suit schedule properties and for mesne profits.

¶4The plaintiff would submit that he and the defendants are the children of one Sarathi and Dhanathammal. The said Sarathi was working abroad and while so he had been periodically sending money to his wife and when the plaintiff and the defendants were minors aged 16, 12 and 5 respectively, he had purchased immovable property in their name. The purchase was for the benefit of the minors.

¶5On attaining majority, the plaintiff and defendants 1 and 2 were jointly cultivating the lands and had been dividing the proceeds among themselves after defraying the expenses incurred for the lands and agricultural operations. The plaintiff would submit that teak wood saplings had been planted in the lands in R.S.No.161/3 to an extent of 6 cents in the year 1981 and a bore well had been sunk and electricity service connection obtained. Thereafter a shed was put up by the plaintiff and defendants 1 and 2 which is part of the dry lands.

¶6In the year 1983, the plaintiff out of his own efforts and funds of his wife purchased immovable properties to the north of the Punja properties belonging to the family. The property so purchased is the self-acquired property of the plaintiff. The defendants 1 and 2 to spite the plaintiff had instigated their father to make a claim against the plaintiff and this dispute was settled through mediation.

¶7The defendants 1 and 2 had raised sugarcane in the suit property but had failed to pay the plaintiff's 1/3 share. Defendants 1 and 2 had joined together and were preventing the plaintiff from taking his tractor to his land through the suit property. Therefore, the plaintiff had filed O.S.No.159 of 2012 on the file of the Principal District Munsif Court, Mayiladuturai, for permanent injunction. The said suit was dismissed on the ground that the plaintiff and defendants are co-owners and that the plaintiff is entitled to a 1/3rd share and the defendants are entitled to a 2/3rd share in the suit property.

¶8Therefore, to avoid disputes and multiplicity of proceedings, the plaintiff had issued a legal notice dated 03.04.2014 to the defendants calling for an amicable partition. The defendants however failed to comply with the request and therefore the plaintiff had come forward with the above suit. Written statement of the 1

st defendant

¶9The 1st defendant had filed a written statement inter alia admitting the plaintiff's contention that the properties had been purchased jointly in the names of the plaintiff and the defendants when they were minors with their mother acting as their guardian. It is also the contention of the 1st defendant that there are other properties available to the joint family which have not been included in the suit schedule in which the 1st defendant has a 1/3rd share. The 1st defendant would submit that the plaintiff is not entitle to partition and sought for a dismissal of the suit. Written Statement of the 2nd defendant

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¶10The 2nd defendant had filed a written statement inter alia contending that their father Sarathi had filed the suit O.S.No.712/1988 for recovery of possession of the suit property and the said suit was decreed in his favour. Thereafter, under an oral arrangement, the suit 1st and the 2nd items of property and an extent of 1 acre 67 cents in the 3rd item of the property was allotted to the share of the 2nd defendant. Only 200 Kuzhi in the 3rd item of the suit property was allotted to the share of the 1st defendant. The remaining 5 acres was allotted to the plaintiff. As per this oral arrangement, parties have been enjoying their respective properties. Therefore, the suit for partition filed by the plaintiff has to be dismissed.

¶11The 2nd defendant would submit that he has spent over a sum of Rs.1,00,000/- on the 2nd item of the suit property and in the remaining extent of land he had cultivated sugarcane. Prior to that, he had cultivated paddy and sugarcane in these lands. The 1st defendant and the plaintiff are enjoying their respective properties allotted to them under the compromise agreement. The 2nd defendant would further submit that the plaintiff had earlier filed a suit O.S.No.159/2012 for declaration and injunction which was dismissed on 28.11.2013. As against the said judgment and decree there has been no appeal and therefore this suit is clearly barred by res judicata. He had also pleaded adverse possession. Trial Court:

¶12The Trial Court had framed the following issues:- 1/ thjp nfhhpa[s;sthW thjpf;F jhth brhj;Jf;fisg; bghWj;J 1-3 ghfk; fpilf;fj;jf;fjh? 2/ jhth 1.2 mapl;l brhj;jpy; 1 Vf;fh; 67 brz;l;Lk;. 3tJ mapl;l brhj;Jk; 2k; gpujpthjpf;F ghj;jpag;gl;ljh? 3/ thjpf;F jhth brhj;jpd; chpik ouster nfhl;ghl;od; K:yk; jilgLfpwjh? 4/ thjp j/eh/eP/f/r/gphpt[ 37(2)?d;go brYj;jpa ePjpkd;w fl;lzk; rhpahdjh? 5/ thjpf;F fpilf;fj;jf;f ,ju ghpfhu';fs; vd;d?

¶13On the side of the plaintiff, 2 witnesses were examined and Ex.A.1 to A.7 were marked. The defendants examined 3 witnesses and marked Ex.B.1 to B.10.

¶14The learned Trial Judge on considering the evidence on record decreed the suit as prayed for. Challenging the said judgment and decree the defendants had preferred A.S.No.11 of 2017 on the file of the Additional District Court, Mayiladuthurai. Lower Appellate Court:

¶15The learned Appellate Judge by his judgement and decree dated 31.01.2020 had allowed the appeal solely on the ground that the suit is bad for non-joinder of necessary parties i.e; the non-impleadment of Sarathi, the father of the plaintiff and the defendants and had set aside the judgement and decree passed by the Trial Court. Challenging the same, the plaintiff has filed the above Second Appeal. Substantial Question of Law:

¶16The Second Appeal has been admitted on the Substantial Question of Law hereinbelow extracted:- "Whether the Lower Appellate Court erred in law in dismissing the suit for non-joinder of necessary party and the same was not even raised in the Memorandum of Grounds and the absence of points for determination?" Submissions:

¶17Mr. A.Muthukumar, learned counsel appearing on behalf of the plaintiff would submit that the defendants had taken the plea of partial partition, oral partition and adverse possession. The Trial Court had disbelieved the plea of oral partition as well as adverse possession. Both the defendants had not taken the plea of non-joinder of necessary parties. He would draw the attention of the Court to para. no.12 of the judgement of the lower Appellate Court wherein the learned Judge has clearly held that the defendants had not proved the oral partition/oral arrangement. The learned Judge had observed as follows:- "Rkhuhf 20 Mz;LfSf;F Kd;g[ tha;bkhHp ghfg;gphptpid ele;jJ vd gpujpthjp jug;gpy; Twg;gl;lnghjpYk; gp/rh/M 1 jPh;g;g[iuapy; 2k; gpujpthjp jhf;fy; bra;j vjph; tHf;Fiuapy; .....vd ghfgphptpid eilbgwtpy;iy vd Twpa[s;shh;/ vdnt gprhM1 tHf;F jhf;fy; bra;ag;gl;l 2013k; Mz;oYk; rhujp jiyikapayhd bghJ FLk;g brhj;Jf;fs; gphptpid bra;ag;gltpy;iy vd;w thjj;ij 2k; gpujpthjp Kd;dpl;l epiyapy; mjw;F Kuzhf 20 Mz;LfSf;F Kd;ng tha;bkhHp ghfg;gphptpid bra;ag;gl;ljhf ,t;tHf;fpy; Twk; thjk; bghUj;jkw;wjhFk;/ vdnt rhujp FLk;g brhj;Jf;fis bghWj;J tha;bkhHp ghfg;gphptpid Vjk; eilbgwtpy;iy vd gpur;rid vz;/3f;F jPh;t[ fhzg;LfpwJ.

¶18Likewise, the Lower Appellate Court had disbelieved the plea of ouster pleaded by the 2nd defendant and had held as follows:- "gp/rh/M/1 tHf;fpd; tHf;Fiuapy; gpuhJ brhj;jpy; jdf;F chpikapUg;gjhf thjp Twpa[s;shh;/ vjphpil mDnghfk; vd;w thjk; Kd;itf;fg;gLk; nghJ thjpapd; chpik xg;g[f; bfhs;sg;gl;Ls;sJ vd;gJ mDkhdk; MFk;/ tha;bkhHp ghfg;gphptpida[k; epU:gpf;fg;glhjjhYk; ve;j njjp Kjy; thjpf;F bjhpe;nj 2k; gpujpthjp jdpj;j mDgtj;jpypUe;J tUfpwhh; vd;gJ bjsptw;w epiyapYs;sjhYk; 2k; gpujpthjpf;F vjphpil mDnghfk; rpj;jpj;Js;sjhf Tw ,ayhJ/ vdnt gpur;rid vz;/4 gpujpthjpf;F vjpuhf jPh;khdpf;fg;gLfpwJ/

¶19However, the learned counsel for the appellant would argue that the learned Appellate Judge had proceeded to hold that Sarathi, the father of the plaintiff and the defendants was the Karta of the Joint Hindu Family and the properties in question being the joint family properties failure to implead him as a party to the proceeding was fatal to the case and therefore held that the suit is bad for non joinder of necessary parties and allowed the appeal only on this ground.

¶20The learned counsel would submit that this plea has not been taken by the defendants and neither was an issue raised in this regard. He would submit that the properties which are sought to be partitioned are only the properties which were being purchased in the name of the plaintiff and the defendants jointly, under Ex.A.1. These properties by no stretch of imagination are the joint family properties.

¶21Per contra, Mr.B.Jawahar learned counsel appearing on behalf of the 1st respondent would submit that the Appellate Court has rightly allowed the appeal on the ground of non-joinder of necessary parties since the properties have been purchased from out of the funds of the father, Sarathi. This fact is proved by the decree in O.S.No.712 of 1988. He would submit that this plea has been raised in para no.6 of the 1st defendant's written statement. He would also rely upon Ex.B.1 suit register in respect of O.S.No.712/1998 which would show that the father of the plaintiff and the defendants, Sarathi had obtained a decree for declaration and recovery of possession and the property in that suit is the property which is the subject matter of the present suit. Therefore, he would submit that the Lower Appellate Court was right in allowing the appeal.

¶22Heard the counsels on both sides. Discussion:

¶23The suit has been filed for a partition on the basis that the suit property had been purchased under Ex.A.1 sale deed in the joint names of plaintiff and the defendants and that since it is not possible to continue to enjoy the property jointly the same had to be partitioned.

¶24The defendants have countered the claim by contending that there are other properties belonging to the joint family which has not been included in the suit and therefore the suit is hit by partial partition that apart the 2nd defendant had raised a plea that there was an oral arrangement between the plaintiff and defendants after the decree in O.S.No.712 of 1988 whereunder the properties had been partitioned and the share alloted to the respective sharers and each of them are enjoying their respective shares. The 2nd defendant had also pleaded that this arrangement had taken place 20 years ago and each party has been enjoying their share for the last 20 years and therefore they had perfected title by adverse possession.

¶25The Courts below have disbelieved the plea of oral partition, partial partition and adverse possession. The defendants have not challenged this finding of the Lower Appellate Court. The ground on which the appeal has been allowed is a ground which has not been pleaded. The defendants have nowhere raised the plea that the non-inclusion of their father, Sarathi as a party to the proceeding is fatal to the case. This was not even an issue either before the Trial Court or before the Lower Appellate Court. In fact, this is not even raised as a point for consideration by the Lower Appellate Court.

¶26The points for consideration which had been framed by the Lower Appellate Court are as follows;-

¶1Whether the petition I.A.No.1/2019 should be allowed?

¶2Whether the plaintiff is entitled to partition and the Trial Court has rightly considered the same?

¶3Whether the Trial Court has rightly examined the plea of oral partition?

¶4Whether the Trial Court has rightly considered the plea of adverse possession?

¶5Whether the appeal should be allowed?

¶27The Lower Appellate Court had allowed the appeal only on the ground of non-joinder of the necessary party. However, this plea had not been taken by the defendants and neither was an issue raised in this regard and the Lower Appellate Court had allowed the appeal on a point which was never in contest. Therefore, the Judgement and Decree of the Lower Appellate Court has to necessarily be set aside. The Trial Court had extensively considered the evidence and the pleadings and decreed the suit. The Lower Appellate Court had also concurred with the findings of the Trial Court regarding the defence of adverse possession and oral partition. Therefore, the substantial question of law is answered in favour of the plaintiff.

¶28In fine, the Second Appeal is allowed, the Judgement and Decree of the lower Appellate Court is set aside and the Judgement and Decree of the Trial Court is confirmed. No costs.

01.02.2024 Index: Yes/No Speaking order/non-speaking order shr To

¶1The Addl.District Judge, Mayiladuthurai.

¶2The Principal Subordinate Judge, Mayiladuthurai.

¶3The Section Officer, V.R.Section, High Court, Madras. P.T.ASHA, J., shr

01.02.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2024 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.Palani Alias Palanisamy … Appellant Vs. 1.Rajendran 2.Mohan . . . Respondents Prayer:- Second Appeal is filed under Section 100 of C.P.C to set aside the Judgement and decree passed in A.S.No. 11/2017 dated 31/01/2020 on the file of the court of Addl.District Judge, Mayiladuthurai in reversing the Judgement and decree passed in O.S.No. 94/2014 dated 22/12/2016 on the file of the Court Principal Subordinate Judge, Mayiladuthurai and confirm the Judgement and decree of the Trial Court by allowing this Second Appeal. For Appellant : M/s.A.Muthukumar For Respondents : M/s.B.Jawahar [R.1] : No appearance [R.2]