Nanjappan v. Raju @ Karuppa Gounder

JUDGMENT The appellant is the second defendant in the suit in O.S.No.138/2011 on the file of the District Munsif Court, Sathyamangalam. The respondents 1 to 3 and one Ramayal (since deceased) / plaintiffs filed the said suit for partition of the suit property into five equal shares and to allot 3 such shares to them.

¶2For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.

3.The case of the plaintiff in a nutshell is as follows :

3.1. The suit property originally belonged to one Thambi Karuppa Gounder, the father of the plaintiffs 1 and 2 and the defendants 1 and 2 and grand father of the plaintiffs 3 and 4. He purchased the suit property through a registered sale deed dated 20.03.1959 (Ex.A1). After the death of Thambi Karuppa Gounder, the plaintiffs and the defendants were in possession and enjoyment of the suit property. Since the plaintiffs could not enjoy the suit property jointly with the defendants, they requested the defendants to partition the same, which was not acceded to by them. The lawyer's notice dated 07.03.2011 (Ex.A3) issued by the plaintiffs to the defendants did not also evoke any response. Hence the suit.

¶4In the trial court, the first defendant remained absent and was set ex-parte. The second defendant resisted the suit on the following grounds: i. The plaintiffs did not issue any notice to the defendants claiming partition of the suit property.

ii. As per the sale deed dated 20.03.1959 (Ex.A1), Thambi Karuppa Gounder purchased the property along with Appachi Gounder, Ramasamy Gounder and Karuppa Gounder from one Ethirajuluammal. As per the sale deed, the purchasers have purchased 1/6 share in the properties mentioned in the sale deed. The plaintiffs have not added the remaining 1/5 sharers as parties in the suit and therefore, the suit is bad for non joinder of necessary parties. iii. On 21.03.1986, Thambi Karuppa Gounder executed a sale deed (Ex.B1) in favour of his sons, ie., the defendants in respect of his 2/3 share in the suit property and ever since the date of said sale deed, the defendants are in possession and enjoyment of the same. iv. The second plaintiff and the mother of the plaintiffs 3 and 4, who are the female heirs, have been given in marriage by spending exorbitant amount. Therefore, they are not entitled to get any share in the suit property. The defendants therefore, prayed for dismissal of the suit.

¶5On the basis of the above pleadings, the trial Court framed the following issues : i. "Whether the suit is bad for non joinder of necessary parties? ii. Whether the suit is maintainable? iii. Whether the plaintiffs have been ousted from the property? iv. Whether the plaintiffs are entitled for partition of the suit property? v. To what relief the plaintiffs are entitled?

¶6In the trial Court, the first plaintiff examined himself and marked Ex.A1 to Ex.A5. The second defendant examined himself and marked Ex.B1 to Ex.B16.

¶7The learned trial court judge, after analysing the oral/documentary evidence on record, dismissed the suit filed by the plaintiffs, vide his decree and judgment dated 03.09.2015, on the ground that the plaintiffs have not described the suit property properly in the

plaint.

8.Aggrieved over the decree and judgment passed by the trial court, the plaintiffs filed an appeal in A.S.No.37/2016, before the Sub-Court, Sathyamangalam. The learned Subordinate Judge, Sathyamangalam, after analysing the evidence on record allowed the appeal, vide his decree and judgment dated 12.01.2018, on the following grounds: i. It is the admitted fact that Thambi Karuppa Gounder purchased 1 acre and 12 cents in survey No.12/4 of Konamoolai Village, Sathyamangalam Taluk, Gopichettipalayam. ii. The first plaintiff, as P.W.1, has deposed that her father had sold 74 cents of land out of 1.12 acres in survey No.12/4 in favour of the defendants 1 and 2 and that she has filed the suit only in respect of the remaining extent of land. iii. In Ex.B1 sale deed, boundary descriptions are clearly mentioned and therefore, there is no dispute in identifying the property which has to be partitioned among the sharers. In the circumstances, the

observation of the trial court judge that the plaintiffs have not described the suit property cannot be sustained and therefore, the same is liable to be set aside.

¶9Aggrieved over the decree and judgment passed by the first appellate court, the present second appeal is filed by the second defendant.

¶10The second appeal was admitted by this Court on the following substantial questions of law: " (a) Whether the suit was incompetent for want of proper description and sufficient identification of the suit land under Order VII Rule 3 and Order XX Rule 9 of the Code?

(b) Whether the Appellate Court below after having found that Ex.B1 describes the property conveyed under it as 2/3 rd UDS, was right in law in passing a preliminary decree for partition of the suit property, which is only 1.3rd UDS?

(c) Whether the Courts below failed to apply the settled law that a co-sharer cannot transfer specified numbers also is to be treated as sale of share? and

(d) Whether the courts below are right in law under Order 1 Rule 19(2) in refusing to implead parties, the presence of whom are necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the suit?"

¶11Heard Mr.B. Manivannan, learned counsel appearing for the appellant and Mr.M. Roshan Atiq, learned counsel appearing for the respondents 1 to 5.

¶12Mr.B. Manivannaan, learned counsel appearing for the appellant contended that when the suit property has not been described properly in the plaint, the plaintiffs cannot claim partition of the suit property. His further contention is that even if a decree is granted in favour of the plaintiffs, the third parties may intervene at the time of partition and therefore the suit filed by the plaintiffs has to be dismissed.

¶13Per contra Mr. M.Roshan Atiq, learned counsel appearing for the respondents 1 to 5 contended that since the trial court dismissed the suit only on the ground that the plaintiffs have not described the suit property properly, the plaintiffs filed an application in I.A. No.152/17 in A.S. No.37 of 2016 in the first appellate court to show that the properties sold in favour of the defendants have been properly described in the sale deed dated 21.03.1986 (Ex.B1). The first appellate court after verifying the documents adduced by the defendants had come to a conclusion that there is no dispute with regard to the identity of the property which has been sold in favour of the defendants. In the circumstances, there is no reason for this Court to reverse the findings rendered by the first appellate court.

¶14At the outset it may be observed that the defendants have not disputed the plaintiffs' right to claim 3/5 share in the suit property. Their only contention is that the suit property has not been described

properly in the plaint. However, a perusal of sale deed dated 21.03.1986 (Ex.B1) shows that boundary descriptions are mentioned therein. The second defendant also dealt with the property by executing a sale deed in favour of his son-in-law Mayilsamy on 23.08.1990 (Ex.B2). In Ex.B2 also, specific boundaries are mentioned. The first defendant sold his half share in favour of the second defendant vide a registered sale deed dated

06.06.1994 (Ex.B3). In all these documents, including the rectification deeds (Ex.B4 to Ex.B6) and settlement deeds (Ex.B7 and Ex.B8), the boundary descriptions are clearly indicated. In the circumstances, the first appellate court was right in granting a decree in favour of the plaintiffs. The observations of the first appellate court is extracted hereunder: '16.1.

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16.2. vdNt tprhuiz ePjpkd;wk; tof;Fiu nrhj;J tptuj;ijAk;, gp.th.rh.M.1, 2, 3 nrhj;J tptuj;ijAk;, gp.th.rh.1 rhl;rpaj;ijAk; njspthf ghh;itapl;bUe;jhYk; ghfgphptpid tof;Ffis nghWj;jtiuapy; ghfk; fpilf;Fk; midtUNk thjpfshf ghtpf;f Ntz;Lnkd;w Nfhl;ghl;bd; mbg;gilapYk; Nkw;gb tprhuiz ePjpkd;wk; nrhj;J tptuk; milahsk; fhz Kbatpy;iy vd;W jPh;khdpj;J tof;if js;Sgb nra;Js;s tptukhdJ jtwhdJ vd;W ,e;j Nky;KiwaPl;L ePjpkd;wk; fUJfpwJ." In the circumstances, this Court does not see any reason to interfere with

the findings recorded by the first appellate court and the substantial questions of law are answered against the appellants.

¶15In the result, i. the Second Appeal is dismissed. No costs. Consequently connected miscellaneous petition is closed. ii. The decree and judgment dated 03.09.2015 passed in O.S.No.138 of 2011, on the file of the District Munsif Court, Sathyamangalam is set aside. iii. The decree and judgment dated 12.01.2018 passed in A.S. No.37 of 2016, on the file of the Sub-Court, Sathyamangalam, is upheld.

15.11.2024 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga To

¶1The Subordinate Judge, Sathyamangalam.

¶2The District Munsif, Sathyamangalam.

¶3The Section Officer, VR Section, High Court, Madras. S.A.No.291ooofoo2018oandoC.M.P.oNo.10603oofo2018 o R.oHEMALATHA,oJ. bga S.A.No.191ooofoo2018o ando C.M.P.oNo.10603oofo2018 o

15.11.2024 Pageo13oofo13

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.11.2024 CORAM THE HONOURABLE MRS. JUSTICE R.HEMALATHA S.A.No.291 of 2018 and C.M.P. No.10603 of 2018 Nanjappan ...Appellant Vs. 1. Raju @ Karuppa Gounder Ramayal (deceased) 2. Amutha 3. Punitha 4. Thangamani 5. Poongodi 6. Sernga Gounder 7. Sivasami (died) ... Respondents R7 died, RR4 and 5 already on record are recorded as LRs of the deceased R7 vide memo dated 23.01.2024 and Court order dated 23.01.2024. Prayer : Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 12.01.2018 passed in A.S. No.37 of 2016, on the file of the Sub-Court, Sathyamangalam, reversing the decree and judgment dated 03.09.2015 passed in O.S.No.138 of 2011, on the file of the District Munsif Court, Sathyamangalam. For Appellant : Mr.B. Manivannan For R1 to R5 : Mr.M. Roshan Atiq R6 : No appearance R7 : Died (legal heirs already on record)