IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.214 of 2009 and M.P.No.1 of 2009 Ponnusamy .. Appellant/4th Defendant vs. 1. Marimuthu @ Loganathan 2. Pavayammal 3. Velusamy 4. Karuppayee 5. Lakshmi .. Respondents/ Plaintiff and Defendants 1 to 3 and 5 This second appeal is filed u/sec 100 of CPC against the judgment and decree dated 26.08.2008 made in A.S.No.27 of 2003 on the file of the Principal Sub Court, Erode confirming the judgment and decree dated 30.11.2001 made in O.S.No.29 of 1998 on the file of the District Munsif Cum Judicial Magistrate, Perundurai. For Appellant : Mr.N.Manokaran For Respondents : No appearance ORDER This second appeal is focussed by the original fourth defendant, animadverting upon the judgement and decree dated 26.08.2008 passed in A.S.No.27 of 2003 by the Principal Subordinate Judge, Erode, confirming the judgement and decree of the trial Court, namely, District Munsif cum Judicial Magistrate, Perundurai, in O.S.No.29 of 1998. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus: The plaintiff/first respondent filed the suit O.S.No.29 of 1998 seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "(a) Directing the division of the suit properties by metes and bounds with reference to good and bad soil into 20 equal shares and to allot and deliver separate possession of 6 such consecutive shares to him; (b) appointing a Commissioner to effect such a division; (c) restraining the 4th defendant, his men, agents and assigns by means of a permanent injunction till the partition and separate allotment is completed, from trespassing into the suit properties and causing interference with his possession and enjoyment of the plaintiff and other defendants; (d) directing the defendants to pay the plaintiff the costs of the suit ..." The defendants entered appearance and filed the written statement and resisted the suit. 3. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 and no exhibit was marked. On the side of the defendants, Ponnusamy/D4 examined himself as D.W.1 and Exs.B1 to B4 were marked. 4. Ultimately, the trial Court decreed the suit in part, as against which an appeal was filed by the fourth defendant, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal is sought to be filed by the fourth defendant on various grounds and also by suggesting the following alleged substantial questions of law: "(a) Whether the Courts below erred in law and misdirected themselves in rejecting the appellant's claim over the suit property in its entirety even though both the Courts having held that his vendors namely Kannammal and Velusamy (D2) are entitled to get 1/4th share each in the suit property, instead of 1/3rd share each claimed by the appellant/4th defendant? (b) Whether the courts below erred in law in not considering the plea of maintainability of the suit for non-joinder of necessary and proper parties, and for partial partition in view of the specific admission made in the evidence of P.W.1? (c) Is not the judgment of the first appellate Court vitiated due to failure to formulate the points for determination as enjoined in Order 41 Rule 31 CPC?" https://hcservices.ecourts.gov.in/hcservices/ 5. Heard the learned counsel for the appellant. 6. A plain poring over and perusal of the typed set of papers including the copies of the judgments of both the Courts below highlight and spotlight, demonstrate and display that one Karuppa Muppan had his ancestral property; he married for the first time Sadayammal and through her, he gave birth to Karuppayi/D3; after the death of Sadayammal, he married Pavayammal, his second wife, who is D1; through her he gave birth to three children, viz., Marimuthu, Karumalayan and Velusamy. Even though Chinna Pillai is shown as born through his first wife, his whereabouts are not known and no one raised any controversy relating to that point is concerned. 7. The First Appellate Court taking into consideration the pros and cons of the matter held that inasmuch as the suit property happened to be the ancestral property of Karuppa Muppan and his three sons, viz., Marimuthu, Karumalayan and Velusamy were the co- sharers and accordingly each were entitled to 1/4th share; consequent upon the death of Karuppa Muppan, his 1/4th share devolved upon his first wife's daughter Karuppayi, his second wife Pavayammal and his three sons, viz., Marimuthu, Karumalayan and Velusamy. The deceased Karuppa Muppan is represented by Karumalayan and Velusamy/D2. As such, plaintiff/Marimuthu, Pavayammal/ second wife, Karuppayi/ D3, Velusamy/D2 and Karumalayan are entitled to the 1/4th share of Karuppa Muppan. As such, the First Appellate Court held that the plaintiff was entitled to 6/20 share. The same logic is applicable to deceased Karumalayan and Velusamy/D2. D4 the second appellant in the second appeal by virtue of his purchase, stepped into the shoes of Kannammal and Velusamy and as such his right obviously works out to 6/20 + 6/20 and accordingly he is having right of such allotment of the share after paying appropriate Court fee. Ex facie and prima facie, there is no law point, much less substantial question of law is involved and as such, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sub Court, Erode 2. The District Munsif Cum Judicial Magistrate, Perundurai. 3. The Section Officer VR Section High Court, Madras 1 cc to Mr.N. Manokaran, Advocate, SR. 10645 S.A.No.214 of 2009 GV (CO) kk 12/5 https://hcservices.ecourts.gov.in/hcservices/