1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.122 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 ABT Ltd., through its Assistant Manager, 180, Race Course Road, Coimbatore .. Appellant /9th Defendant Vs. 1.Selvakumar ..1st Respondent / Plaintiff 2.Sri Krishnaperuaml Nadar 3.Chidambaram 4.Mahalingam 5.Pon Muthammal 6.Paulpandi 7.Ramiah 8.Muthukutti 9.Perumal 10.Chief Engineer, Wind Mill Project, TNEB,800, Anna Salai, Chennai. 11.Superintending Engineer, Wind Mill Development Cell, TNEB, Maharaja Nagar, Tirunelveli. (Respondents 2 to 10 – Dispensed with) .. Respondents 2 to 11/Defendants 1 to 8 and 10 and 11 Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.11.2007 passed in Appeal Suit No.65 of 2006 by the Principal District Court, Tirunelveli confirming the Judgment and decree dated 23.06.2006 passed in Original Suit No.101 of 2005 by the Principal Sub Court, Tirunelveli. For Appellant : Mr.H.Arumugam For Respondent No.11 : Mr.M.Suresh Kumar For Respondent No.1 : Mr.M.V.Kumar for for Mr.M.V.Venkateseshan R2 to 10 : Dispensed with https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT This second appeal has been preferred against the concurrent Judgments and decrees passed in Original Suit No.101 of 2005 by the Principal Sub Court, Tirunelveli and in Appeal Suit No.65 of 2006 by the Principal District Court, Tirunelveli. 2. The first respondent herein as plaintiff has instituted Original Suit No.101 of 2005 on the file of the trial Court for the reliefs of partition and separate possession of his 9/24th share, wherein the present appellant as well as remaining respondents have been shown as defendants. 3. In the plaint it is averred that the suit property and some other properties are originally belonged to one Sri Krishnaperuaml Nadar and he passed away leaving behind him, his three sons viz., Ramiah Nadar, Lakshmana Nadar and Kumarasamy Nadar. The said Ramiah Nadar has married two wives viz., Pathrakali and Seethalakshmi. The said Pathrakali has passed away leaving behind her, her sons viz., Sri Krishnaperuaml Nadar (first defendant) and Lakshmana Nadar and the said Lakshmana Nadar has passed away in the year 1973 leaving behind his two sons viz., Chidambaram and Mahalingam. The plaintiff has purchased 1/24th share in the suit property from the said Chidambaram and he has also purchased 1/3rd share from Lakshmiammal and in aggregation the plaintiff is having 9/24th share in the suit property. Since the defendants are not amenable to have 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 defendants 4 to 8, it is averred that Ramiah Nadar has not married Pathrakali and he kept her as his concubine. Under the said circumstances, the vendor of the plaintiff has had no locus standi to execute a sale deed in favour of the plaintiff touching the suit property with regard to 1/24th share and there is no merit in the suit and the same deserves to be dismissed. 5. In the written statement filed on the side of the ninth defendant, it is averred that the ninth defendant has purchased the entire suit property and put up wind mills and the plaintiff is not having any share in the suit property and there is no merit in the suit and the same deserves to be dismissed. 6. In the written statement filed on the side of the eleventh defendant it is averred that after making inspection, a permission has been granted in favour of the ninth defendant so as to install wind mills and there is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 3 7. 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 prayed for. Against the Judgment and decree passed by the trial Court, the ninth defendant as appellant has preferred Appeal Suit No.65 of 2006 on the file of the first appellate Court. 8. 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 ninth defendant as appellant. 9. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 10. On the side of the appellant/ninth defendant, the following substantial questions of law have been raised for consideration: a) Whether the Courts are right in shifting the burden of proof on the defendant to prove that the Pathrakaliammal was not the wife of Ramiah Nadar, when it is for the plaintiff to prove that she was the wife of Ramiah Nadar that too when the daughter of Ramiah Nadar, fourth defendant herself has specifically pleaded that the Pathrakaliammal was the concubine of her father? b) Whether the Courts below have committed wrong in not accepting Exs.B.4 and B.5 pattas stand in the name of mother of fourth defendant namely the wife of Ramiah Nadar and hence the Judgments of the Courts below are liable to be interfered with? c) Whether the findings of the Courts below are perverse since the same is against the evidence available on record and hence the same has to be set aside by this Hon'ble Court invoking Section 100 of C.P.C.? d) Whether the suit is bad for non-joinder of necessary parties for not impleading Lakshmiammal, a co- owner of the suit properties and hence the judgment and decree of the Courts below are liable to be interfered with? 11. The sum and substance of the case of the plaintiff is that the suit property and some other properties are originally belonged to one Sri Krishnaperuaml Nadar and he passed away leaving behind https://hcservices.ecourts.gov.in/hcservices/ 4 him, his three sons viz., Ramiah Nadar, Lakshmana Nadar and Kumarasamy Nadar. The said Ramiah Nadar has married two wives viz., Pathrakali and Seethalakshmi and the said Pathrakali has passed away leaving behind her two sons viz., Sri Krishnaperuaml Nadar (first defendant) and Lakshmana Nadar and the said Lakshmana Nadar has passed away in the year 1973 leaving behind his two sons viz., Chidambaram and Mahalingam. The plaintiff has purchased 1/24th share in the suit property from the said Chidambaram and 1/3rd share from Lakshmiammal and in aggregation the plaintiff is having 9/24th share in the suit property. Since the defendants are not ready and willing to effect partition of the suit property, the present suit has been instituted for the reliefs sought for in the plaint. 12. The consistent stand taken on the side of the contesting defendants is that Pathrakali is not the wife of Ramiah Nadar and he kept her as his concubine and under the said circumstances the vendor of the plaintiff viz., Chidambaram has had no locus standi to execute a sale deed in favour of the plaintiff touching the suit property with regard to 1/24th share and therefore the present suit is liable to be dismissed. 13. The Courts below after considering the available evidence on record have rejected the defence taken on the side of the contesting defendants. 14. The learned counsel appearing for the appellant/ninth defendant has strenuously contended that the appellant/ninth defendant has purchased the entire suit property from the defendants 4 to 8 and the plaintiff has claimed his right over the suit property by virtue of the sale deed alleged to have been executed by Chidamabram, who has been arrayed as second defendant and further one of the sons of Sri Krishnaperuaml Nadar viz., Ramiah Nadar has married Seethalakshmi as his wife and he kept Pathrakali as his concubine and since the vendor of the plaintiff has claimed right over the suit property through the said Pathrakali, the sale deed executed by him in favour of the plaintiff is not legally valid and therefore the plaintiff is not entitled to get the reliefs sought for in the plaint and the Courts below without considering the defence taken on the side of the defendants have erroneously accepted the contention urged on the side of the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 15. Per contra, the learned counsel appearing for the contesting respondents has contended that Ramiah Nadar has married two wives viz., Pathrakali and Seethalakshmi and the said Pathrakali has passed away leaving behind her two sons viz., the first defendant and Lakshmana Nadar and the father of the plaintiff is nothing, but one of the sons of Lakshmana Nadar and the Courts below after considering the available evidence on record have rightly rejected the defence taken on the side of the defendants and therefore the https://hcservices.ecourts.gov.in/hcservices/ 5 concurrent Judgments and decrees passed by the Courts below do not warrant interference. 16. On the side of the contesting defendants, the sixth defendant viz., Ramiah has been examined as D.W.1. He would say in his evidence during the course of cross-examination that the defendants 2 and 3 are the children of Lakshmana Nadar. Further he deposed that he, defendants 2 and 3 and Pathrakali Ammal have jointly enjoyed the suit property. The main defence taken on the side of the contesting defendants is that the said Pathrakali Ammal is not the wife of Ramiah Nadar and he kept her as his concubine. But D.W.1 has stated in his evidence that he, defendants 2 and 3 and the said Pathrakali Ammal have jointly enjoyed the suit property. Considering the admission given by D.W.1, the Court can very well come to a conclusion that Pathrakali Ammal is the wife of Ramiah Nadar. If really, the said Pathrakali Ammal has no connection whatsoever with the family of Ramiah Nadar, definitely she, D.W.1 and defendants 2 and 3 would not have enjoyed the suit property in common. Therefore the clear admission given by P.W.1 has completely debilitated the entire defence taken on the side of the contesting defendants and the Courts below after considering the clear admission made by D.W.1, have rightly rejected the main defence taken on the side of the contesting defendants. 17. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further the substantial questions of law raised on the side of the appellant/ninth defendant are not having substance at all and altogether the present second appeal deserves to be dismissed. 18. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. The concurrent Judgments and decrees passed by the Courts below are confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To 1.The Principal District Judge, Tirunelveli. 2.The Principal Sub Judge,Tirunelveli. +1cc to Mr.V.Venkataseshan, Advocate, Sr.No.19425 S.A(MD)No.122 of 2011 and M.P(MD)No.1 of 2011 smn/SMA/20.7.2011/4C/5P https://hcservices.ecourts.gov.in/hcservices/