1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.285 of 2011 K.S.Murugappan ... Appellant/Plaintiff Vs. Sevugan ... Respondent/Defendant Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.28 of 2009 dated 28.04.2010 by the District Court, Sivagangai, reversing the judgment and decree of the Sub-Court, Devakottai made in O.S.No.38 of 2008 dated 31.08.2009. For Appellant :Mr.T.V.Sivakumar J U D G M E N T This second appeal has been directed against the judgment and decree dated 28th April 2010 passed in A.S.No.28 of 2009 by the District Court, Sivagangai, wherein, the judgment and decree passed in O.S.No.38 of 2008 by the Sub-Court, Devakottai are reversed. 2.The appellant herein as plaintiff has instituted O.S.No.38 of 2008 on the file of the trial Court for the reliefs of partition and separate possession of his 1/3rd share, wherein, the present respondent has been shown as sole defendant. 3.In the plaint, it is averred that the suit property is originally belonged to three brothers namely M.Kalimuthu, MR.Kalimuthu and Vellaisamy who are the sons of Murugappan and they have entered into a partition deed dated 14.03.1953, wherein, the share of Vellaisamy has been relinquished in favour of MR.Kalimuthu and no actual division has been taken place in between the families of M.Kalimuthu and MR.Kalimuthu. The plaintiff is one of the sons of Samiyaya, who is none other than the son of M.Kalimuthu. The defendant is said to have purchased the entire suit property from the family members of MR.Kalimuthu. In the suit property, the plaintiff is having 1/3rd share. Since the defendant is not amenable to have amicable partition, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendant, it is averred that the plaintiff is not having any semblance of right over the suit property and the defendant has purchased the entire suit property under a registered sale deed dated 25.01.1984 and he has had enjoyed the same for more than a statutory period and thereby perfected title to the same by adverse possession. There is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit as prayed for. Against the https://hcservices.ecourts.gov.in/hcservices/ 2 judgment and decree passed by the trial Court, the defendant as appellant has preferred A.S.No.28 of 2009 on the file of the first appellate court. 6.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal, and thereby set aside the judgment and decree passed by the trial Court and ultimately dismissed the suit. Against the judgment and decree passed by the first appellate court, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7.Considering the reason given by the first appellate court for dismissing the suit and also considering the nature of the reliefs sought for in O.S.No.38 of 2008, this second appeal is disposed of at the stage of admission without giving notice to the respondent/defendant. 8.On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: “1.Is the first appellate court is correct and justified in dismissing the claim of the plaintiff/appellant herein having given a finding that the plaintiff/appellant is entitled to 1/3rd share in the suit property? 2.Is the first appellate court is correct and justified in negativing the claim of the plaintiff/appellant on the ground of non-joinder of necessary party without affording an opportunity to the plaintiff to include the other brother in the suit? 3.Is the lower appellate court is correct and justified in negativing the claim of the plaintiff on the basis of the admission of the defendant/respondent that he has purchased only 7000 sq.ft? 4.Is the lower appellate court is correct and justified in negativing the claim of the appellant/plaintiff when the defendant/respondent herein has claimed title by adverse possession, which will clearly and clinchingly prove that he is not the owner? 5.Is the lower appellate court is correct and justified in negativing the claim of the appellant herein without following the procedure contemplated under Order 1 Rule 10(2) of the Civil Procedure Code?” 9.The learned counsel appearing for the appellant/plaintiff has sparingly contended that the first appellate court has reversed the judgment and decree passed by the trial court simply on the ground that the present suit is bad for non-joinder of necessary party without giving sufficient opportunity to the appellant/plaintiff. Under the said circumstances, the judgment and decree passed by the first appellate court are liable to be interfered with. 10.For considering the submission made on the side of the appellant/plaintiff, the court has to look into the genealogy put forth on the side of the appellant/plaintiff. On the side of the appellant/plaintiff, it is stated that the suit property and some other properties are originally belonged to erstwhile joint family consisted of Murugappan and his three sons namely M.Kalimuthu and MR.Kalimuthu and Vellaisamy and subsequently a partition has taken place, wherein the share of Vellaisamy has been relinquished in favour of the family of https://hcservices.ecourts.gov.in/hcservices/ 3 MR.Kalimuthu. The plaintiff is the grandson of M.Kalimuthu and his son is Samiyaya. 11.It is an admitted fact that the plaintiff is having a brother by name Kalimuthu. The present suit has been instituted for the reliefs of partition and separate possession of 1/3rd share. In the plaint, no mention has been made with regard to the right of Kalimuthu, brother of the plaintiff. Since the present suit has been instituted for the reliefs of partition and separate possession of 1/3rd share and since the brother of plaintiff, viz., Kalimuthu has not been impleaded in the present suit, as rightly pointed out by the first appellate court, the present suit is bad for non-joinder of necessary party. 12.The first appellate court has dismissed the suit simply on the ground that the present suit is bad for non-joinder of necessary party without giving sufficient opportunity to the appellant/plaintiff so as to implead the said Kalimuthu. Under the said circumstances, the judgments and decrees passed by the courts below are liable to be set aside by way of giving opportunity to the appellant/plaintiff to implead the said Kalimuthu. 13.Considering the fact that the judgments and decrees passed by the courts below are liable to be set aside, the substantial questions of law raised on the side of the appellant/plaintiff need not be decided. 14.In fine, this second appeal is allowed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is closed. The judgments and decrees passed by the courts below are set aside and O.S.No.38 of 2008 is remitted to the file of the Sub-Court, Devakottai. The plaintiff/appellant is directed to implead all necessary parties. The Sub-Court, Devakottai is strictly directed to dispose of O.S.No.38 of 2008 within a period of four months from the date of receipt of copy of this judgment. The respondent/defendant is entitled to take additional defence if any by way of filing additional written statement. The court fee paid on the appeal memorandum is ordered to be refunded forthwith. Sd/- Assistant Registrar (RTI Act) /True copy/ Sub Assistant Registrar(C.S) To 1.The Subordinate Judge, Devakottai 2.The District Judge, Sivagangai. +1. CC to Mr.T.V.Sivakumar, Advocate, SR.No. 19523 vs SA.(MD).No.285 of 2011 20.06.2011 TR : 14.07.2011 : 3p/4c https://hcservices.ecourts.gov.in/hcservices/