1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.99 of 2011 AND MISCELLANEOUS PETITION No.1 of 2011 Rasu .. Appellant/Plaintiff Vs. 1.Muniyan 2.Balu 3.Veerandi 4.Selvam 5.Balu .. Respondents/Defendants Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 22.09.2010 passed in Appeal Suit No.42 of 2008 by the Sub Court, Sivagangai confirming the Judgment and decree dated 22.01.2008 passed in Original Suit No.78 of 2004 by the District Munsif cum Judicial Magistrate's Court, Ilayangudi. For Appellant : Mr.V.Sitharanjandas For Respondent : Mr.S.Ramesh No.2 For Respondents : No appearance 1,3,4 and 5 JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.78 of 2004 by the District Munsif cum Judicial Magistrate's Court, Ilayangudi and in Appeal Suit No.42 of 2008 by the Sub Court, Sivagangai. 2. The appellant herein as plaintiff has instituted Original Suit No.78 of 2004 on the file of the trial Court for the reliefs of partition and separate possession of his 1/12th share, wherein the present respondents have been shown as defendants. 3. It is averred in the plaint that the suit items 1 and 2 have been purchased in the name of Udayal, who is none other than the paternal grandmother of the plaintiff and she executed a settlement deed dated 02.06.1997 in favour of the plaintiff and defendants 1 to 5 in respect of suit items 1 and 2. The suit items 3 to 5 have been purchased in the names of the defendants 1 to 3, plaintiff and father of the defendants 4 and 5 for the benefit of joint family. The sixth item of the suit property has been https://hcservices.ecourts.gov.in/hcservices/ 2 assigned by the Government in favour of the first defendant. The defendants are not willing to have amicable partition. Under the said circumstances, 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 second defendant, it is averred that the present suit has been instituted at the instigation of the first defendant. On 10.08.1977 a partition has been effected and in pursuance of the same a partition list has come into existence. 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 six issues and after analysing the available evidence on record has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.42 of 2008 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 dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a) Whether the Lower Appellate Court can dismiss the application for reception of documents filed under Order 41, Rule 27 of C.P.C. merely by stating that the same is unnecessary since the appeal is dismissed? b) Whether the Courts below can treat a particular answer by P.W.1 during the course of cross-examination that his mother told that the partition has already been effected as an admission and dismiss the suit? c) Are not the Courts draw adverse inference that there was no prior partition when the contesting parties failed to produce partition chit which was stated as prepared and reduced into writing? d) Whether the Courts are right in dismissing the suit by stating that the mother of the appellant was not added as a party especially when all the sharers of the appellants father are in parties? e) Whether the Courts are right in dismissing the suit merely by stating that the first defendant who is one of the co-sharer failed to contest the suit? https://hcservices.ecourts.gov.in/hcservices/ 3 9. The consistent stand taken on the side of the plaintiff is that the suit items 1 and 2 are originally belonged to one Udayal, who is none other than the paternal grandmother of the plaintiff and defendants 1 to 5 and she voluntarily executed a settlement deed dated 02.06.1997, whereby settled suit items 1 and 2 in favour of the plaintiff and other defendants and the suit items 2 to 5 have been purchased in the names of members of joint family for the benefit of joint family and suit item No.6 has been assigned by the Government in the name of the first defendant. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 10. The main defence taken on the side of the contesting defendant is that with regard to suit properties a partition has been effected on 10.08.1977 and therefore the present suit for partition is totally unwarranted and the same is liable to be dismissed. 11. As stated earlier, the trial Court has framed as many as six issues. The vital issue framed by the trial Court is as to whether a partition list has come into existence on 10.08.1977? 12. In the trial Court, on the side of the contesting defendant the alleged partition list dated 10.08.1997 has not at all been marked. Even though the same has not been marked and even a specific issue has been framed to that effect, the trial Court has not given proper answer to the issue framed in respect of the alleged partition list dated 10.08.1977. 13. The trial Court has dismissed the suit stating that the plaintiff has not filed relevant documents with regard to other items of suit properties. Under the said circumstances, the only point that has to be decided in the present suit is as to whether the suit properties have already been partitioned as contended on the side of the contesting defendant? But the Courts below have not at all given proper verdict with regard to the vital issue involved in the present case. 14. In Appeal Suit No.42 of 2008, on the side of the appellant/plaintiff a petition has been filed in Interlocutory Application No.377 of 2008 under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 praying to admit the documents filed therein as additional evidence. The first appellate Court has dismissed the same simply on the ground that Appeal Suit No.42 of 2008 has been dismissed. Therefore the reason given by the first appellate Court for dismissing Interlocutory Application No.377 of 2008 is totally erroneous. 15. It has already been pointed out that the vital issue involved in the present case has not at all been decided either by the trial Court or by the first appellate Court. Since the vital issue involved in the present case has not at all been decided in the present case and since the first appellate Court without https://hcservices.ecourts.gov.in/hcservices/ 4 assigning proper reason has dismissed Interlocutory Application No.377 of 2008, which has been filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, it is needless to say that the concurrent Judgments and decrees passed by the Courts below are totally absurd and the same are liable to be set aside and the matter is liable to be remitted to the file of the trial Court. Since the matter is liable to be remitted to the file of the trial Court, the substantial questions of law raised on the side of the appellant/plaintiff need not be decided. 16. In fine, this second appeal is allowed without costs at the stage of admission. The concurrent Judgments and decrees passed in Original Suit No.78 of 2004 by the District Munsif cum Judicial Magistrate's Court, Ilayangudi and in Appeal Suit No.42 of 2008 by the Sub Court, Sivagangai are set aside and Original Suit No.78 of 2004 is remitted to the file of the District Munsif cum Judicial Magistrate's Court, Ilayangudi. The District Munsif cum Judicial Magistrate's Court, Ilayangudi is strictly directed to discuss the vital issue involved in the present case and give proper finding. The appellant/plaintiff is directed to file all the relevant documents to establish his right over the suit properties. The defendants are also entitled to adduce additional evidence. The trial Court is further directed to dispose of Original Suit No.78 of 2004 within a period of fourth months from the date of receipt of a copy of this Judgment and report the same to the Registry without fail. The Court fee paid on the Appeal Memorandum is ordered to be refunded to the appellant/plaintiff forthwith. The Registry is directed to send all the records forthwith. Consequently, connected Miscellaneous Petition is closed. Sd/- Deputy Registrar (LA) /True Copy/ Assistant Registrar To 1.The Subordinate Judge, Sivagangai. 2.The District Munsif cum Judicial Magistrate, Ilayangudi. +1cc to Mr.V.Sitharanjan Das, Advocate Sr.No.18331 +1cc to Mr.V.Raghavachari, Advocate Sr.No.18545 smn ssk/22.06.2011 /5c-4p/- S.A(MD)No.99 of 2011 and M.P(MD)No.1 of 2011 14.06.2011 https://hcservices.ecourts.gov.in/hcservices/