IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.04.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.217 of 2009 and M.P.No.1 of 2009 R.Shamugaraj .. Appellant(2nd Defendant) vs. 1. R.Jeevarathinam 2. R.Jagadambal 3. R.Jayanthikumari 4. A.Saraswathi 5. R.Rajendran 6. Nanjammal 7. Rajalakshmi .. Respondents(Plaintiffs 1 to 3 and Defendants 1,3 to 5) This second appeal is filed against the judgment and decree of the learned Principal District Judge of Coimbatore made in A.S.No.135 of 2005 dated 27.11.2007 confirming the judgment and decree of the learned Principal Subordinate Judge of Coimbatore made in O.S.No.471 of 1999 dated 17.09.2005. For Appellant : Mr.J.Ramakrishnan For Respondents : No appearance J U D G M E N T This second appeal is focussed by the original second defendant, animadverting upon the judgement and decree dated 27.11.2007 passed in A.S.No.135 of 2005 by the Principal District Judge, Coimbatore, confirming the judgment and decree of the trial Court, namely, Principal Subordinate Judge of Coimbatore, in O.S.No.471 of 1999. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus: https://hcservices.ecourts.gov.in/hcservices/ The plaintiffs/respondents 1 to 3 filed the suit O.S.No.471 of 1999 seeking the following reliefs: " - divide the 1st item of the suit property into 6 equal shares and allot three such shares to the plaintiffs; - permanent injunction restraining the 1 to 3 defendants, their men, agents, servants, or anybody else, not to interfere or encumbrance over the plaintiffs' property." D2 entered appearance and filed the written statement resisting the suit. 3. During trial, the first plaintiff/Jeevarathinam examined himself as P.W.1 and Exs.A1 to A19 were marked. On the side of the defendants, D2 examined himself as D.W.1 and Exs.B1 to B42 were marked. 4. Ultimately, the trial Court allowed the suit, as against which an appeal was filed by D2, for nothing but to be dismissed by the First Appellate Court. Being disconcerted and aggrieved by the said judgement and decrees of both the Courts below, this second appeal has been filed by D2 on various grounds and also suggesting the following alleged substantial questions of law: "(a) Whether the suit is maintainable in law in the absence of relief of declaration that Ex.B.29 is null and void and not binding on the plaintiffs apart from the relief of seeking set aside the Ex.B29 by paying proper court fee? (b) Having regard to scope of Section 115 of the Indian Evidence Act whether the plaintiffs are estopped from seeking the relief as prayed for in the present suit? (c) Whether in law present suit for partition is maintainable in law when even according to the plaintiffs already a partition had taken place in respect of suit properties?" (Extracted as such) 5. Heard the learned counsel for the appellant. 6. A poring over and deep analysis of the typed set of papers including the copies of the judgment and decrees of both the Courts below and consideration of the argument of the learned counsel for the appellant would display and demonstrate that the respondents 1 to 3 filed the suit O.S.No.471 of 1999 for partition on the main ground that the partition deed Ex.B29(Ex.A1) was not acted upon. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel for the appellant in the Second Appeal/D2 would develop his argument to the effect that D2 has been in possession and enjoyment of his portion allotted under the partition deed; Ex.B29 is a registered partition deed which both sides cannot give a go bye to it unless there is a prayer for declaring the said partition deed as null and void or sham and nominal etc., and that too after paying the Court fee and consequent decision emerging thereunder; however, in this case surprisingly and shockingly, despite the fact that the plaintiffs are parties to the partition deed, they have not chosen to seek for declaration and that paved the way for framing of substantial question of law. 8. The learned counsel for the appellant in the Second Appeal in all fairness invited the attention of this Court to paragraph 8 of the trial Court judgment which would exemplify and convey that D2 the appellant in Second Appeal himself had filed the O.S.No.757 of 2001 seeking partition based on the Will dated 06.01.1967 purported to have been executed by his father Rangasamy and the very appellant herein clearly and categorically took up the plea in that suit, that Ex.B29 was not acted upon. Hence in these circumstances, I am at a loss to understand as to how in this Second Appeal, he could be heard to contend as though Ex.B29 is a valid piece of document which requires to be set aside. Both parties in unison without any difference of opinion on Ex.B29 approached the Court that it was a document which was not acted upon. Hence in my considered opinion no substantial question of law could be framed based on Ex.B29. 9. En passant, I would like to point out a few admitted and indubitable facts. Rangasamy and Ramasamy were brothers who jointly purchased the suit property and enjoyed it. After their demise, Rangasamy is represented by his legal heirs, viz., D1 his wife, P2 and P3, the plaintiff's daughters, and D2 and D3 sons; D4 and D5 are representing the said deceased Ramasamy. The very placing reliance on the Will purported to have been executed by Rangasamy loses its importance for the reason that Ex.B29 the partition deed according to D2 emerged and as such it is crystal clear as per his own version the parties have given a go bye to the Will and that Will was not implemented. 10. The recitals in Ex.B29 and the Will would not hang together and they would not go hand in hand. Further the act of D2 in filing the suit will further worsen his case. Ex.B29 was not a piece of document worthy of being acted upon. As such it is crystal clear that antithetical stand was taken by D2, so as to some how or other stall the partition process and as such, I could see no question of law, much less substantial question of law is involved in this case. 11. The learned counsel for the appellant would appropriately highlight that once the Courts below arrived at the conclusion that there should be a preliminary decree and consequently a final decree https://hcservices.ecourts.gov.in/hcservices/ for partition so as to divide by metes and bounds, there was no justification in granting a blanket injunction. I would like to agree with him. Since this appeal itself is disposed of at the admission stage, I would like to remark and observe that the effect of injunction is that pending partition proceedings there shall not be any alienation; however one co-sharer cannot get injunction as against another co-owner regarding enjoyment, and injunction granted by both the Courts below shall be construed to the extent that till finalisation of partition, there shall not be any alienation of the suit property. In the result, this Second Appeal is dismissed. No costs. Consequently connected miscellaneous petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar gms To 1. Principal District Judge of Coimbatore 2. Principal Subordinate Judge of Coimbatore. + 1 cc to Mr.J.Ramakrishnan,Advocate,SR.12507 S.A.No.217 of 2009 KM(CO) EM/9.6.09 https://hcservices.ecourts.gov.in/hcservices/