IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/03/2004
CORAM
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
SECOND APPEAL NO.506 OF 1993
1. Kanna Pillai (deceased)
2. Sakunthala
3. Parasuraman
4. Kumari
5. Valli
(Appellants 2 to 5 brought
on record as LRs of the
deceased sole appellant vide
as per order of Court
dt.10.4.02 made in CMP.3910/02) .. Appellants
-Vs-
1. Oyamalli @ Mallika Ammal
2. Sri Raman
3. Thirumal
4. Veerappan (died)
5. Venkatesan
6. Rajam
7. Minor Ve.Hemalatha
rep. by her mother Rajam
6th respondent
(Respondents 6 and 7 are brought
on record as LRs of deceased
4th respondent and the 6th
respondent guardian vide
CMP Nos.3957 & 3958/94
dt.27.7.2000) .. Respondents
This second appeal is preferred under Section 100 of CPC against the
judgment and decree passed in AS No.4 of 1990 on the file of the learned
Subordinate Judge, Vilupuram dated 2.2.1993 confirming the judgment and decree
of the learned Additional District Munsif, Villupuram made in OS No.415/87
dated 5.9.1989.
:JUDGMENT
What is challenged herein is the judgment of the learned Subordinate
Judge, Villupuram made in AS No.4 of 1990, wherein the judgment of the trial
court in a suit for declaration and for consequential permanent injunction was
affirmed.
2. The plaintiff sought the relief in respect of a piece of land,
measuring 1-1/2 cents along with a tamarind tree shown as B schedule to the
plaint, a part of 6 cents situated in S.No.622/3 which is described as A
schedule. According to the plaintiff, the property measuring 6 cents
originally belonged to his father one Govindasamy Pillai and his three
brothers, and thus, each was entitled to 1-1/2 cents. Originally patta was
granted. The old patta number is 319 and the new patta number is 780. The
defendants have no right or interest over the suit property. While so, the
defendants were adumbrating that out of 6 cents in S.No.622/3, the husband of
the first defendant and the father of the defendants 2 to 5 one Thiruvenkatam
was entitled to 4 cents and the rest 2 cents was belonged to the plaintiff and
their pankalis. When the plaintiff made an attempt to take the fruits in the
tamarind tree, it was being objected to by the defendants, and there arose a
necessity for the plaintiff to file the suit.
3. The suit was resisted by the defendants-inter-alia stating that
the claim made by the plaintiff was false and the suit A schedule property
measuring 6 cents never belonged to the plaintiff’s family; that neither B
schedule nor A schedule has been in possession of the plaintiff or his family
members, but the property has also been in the possession of the defendants
and prior to them with Thiruvenkadam, the husband of the first defendant; that
the property actually lies within patta No.320 and not 319 as contended by the
plaintiff; that the defendants have been paying kist; that originally, a suit
was filed in OS No.562 of 1980 and an appeal was preferred in AS No.148 of
1982, wherein it has been found that the plaintiff was not entitled to, but
the same was suppressed in the suit, and hence, the suit was to be dismissed.
4. The trial court framed necessary issues, tried the suit and
dismissed the same. Aggrieved, the plaintiff took it on appeal, which was
also met the same fate. Hence, this second appeal, at the instance of the
plaintiff, aggrieved over the judgment of courts below.
5. At the time of admission, the following substantial question of
law was formulated by this Court for consideration:
“Whether the dismissal of the suit in its entirety even though a
finding is given in favour of the appellant in respect of two cents of suit
land is sustainable?”
6. Heard the learned counsel for the appellants and also the
respondents on those contentions.
7. From the very reading of the plaint, it could be seen that the
plaintiff has sought the relief of declaration in respect of 1-1/2 cents out
of 6 cents situated in S.No.622/3 and also a tamarind tree situated in that
1-1/2 cents. The said 1-1/2 cents and the tamarind tree are shown in B
schedule and the total extent of 6 cents was shown in A schedule. The
specific case of the plaintiff was that the entire extent of 6 cents is
originally belonged to his father one Govindasamy Pillai and his three
brothers, and thus, all the four branches were entitled to 6 cents and each
was entitled to 1-1/2 cents. It remains to be stated that nowhere in the
plaint, any partition or separate possession and enjoyment of the property has
been pleaded, but the plaintiff averred in the plaint that the entire property
was in possession of the plaintiff and he has been paying kist for the same.
It is true that it is not a suit for partition, but the plaintiff has sought
for declaration in respect of 1-1/2 cents and a tamarind tree therein, which
is shown in B schedule. Needless to say that the plaintiff comes forward to
state that there are other co-sharers, and hence, declaration as sought for by
the plaintiff in the absence of others cannot be granted at all. As pointed
out above, it is not the case of the plaintiff that the property was divided
and the plaintiff was in possession and enjoyment of the same. The defendants
have come forward to state that out of 6 cents, the first defendant was
entitled to 4 cents and the rest belonged to the family of the plaintiff. The
adding circumstance is that both the courts below have pointed out that the
plaintif has failed to prove the fact, by seeking an appointment of an
Advocate Commissioner, that there is a tam arind tree in B schedule property.
The Court is able to see legal impediment, though not mentioned by both the
courts below, that such a declaration in respect of a part of the property,
namely, 1-1/2 cents and a tamarind tree, in the absence of the other
cosharers, whom according to the plaintiff were also entitled to the property
of 6 cents, cannot be granted, and thus, it suffers with non adding of
necessary party to the suit. Apart from that, under the stated circumstances,
this Court is of the opinion that the merit of the rival submissions in
respect of their cases need not be now gone into and what would be better is
to make a dismissal of the appeal by giving liberty to the plaintiff to file a
fresh suit, adding all the necessary parties and seeking for necessary relief
as required in law. It was a suit filed by the plaintiff seeking for
declaration in respect of 1-1/2 cents and a tamarind tree. But, both the
courts below, in the absence of all the necessary parties, have gone into an
extent of adjudicating the right of the defendants stating that they are
entitled to 4 cents out of total extent of 6 cents, which finding has got to
be necessarily set aside for the simple reason that in the absence of all the
necessary parties, such adjudication cannot also be done. Hence, that finding
is set aside. Exercising liberty, if the plaintiff has filed a fresh suit
adding all the necessary parties, the defendants are at liberty to adduce
evidence necessary.
8. In the result, this second appeal is dismissed, leaving the
parties to bear their costs.
Index : Yes
Internet : Yes
vvk
To
1. The Subordinate Judge, Villupuram
2. The Additional District Munsif, Villupuram
3. The Record Keeper, VR Section,
High Court, Madras