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2008 Supreme(Mad) 1615
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
S. Muthu
Versus
R. Chandramohan
A.S.No.931 of 1997, A.S.No.26 of 2001 & Tr.A.S.No.265 of 2007
Decided On : 10-06-2008
For the Petitioner:A. Abdullah Ahamed, Advocate.
For the Respondent:R1, S. Natanarajan, Advocate.
The main legal point established in the judgment is the requirement to obtain leave from the court before filing subsequent suits for the same cause of action, as per Order II Rule 2(2) of the Civil Procedure Code.
Headnote:
Partition - Property Dispute - Order II Rule 2(2) of Civil Procedure Code - Ancestral Property - Joint Family Property - Self-Acquired Property - Final Decree - Appeal Dismissed
Fact of the Case:
The appellant filed multiple suits seeking partition and separate possession of various properties against the first respondent. The trial court granted preliminary decree for partition of certain properties but dismissed the claims for other properties. The appellant filed subsequent suits for the same properties without obtaining leave from the court, leading to a statutory bar under Order II Rule 2(2) of the Civil Procedure Code.
Finding of the Court:
The court found that the appellant failed to establish joint family nucleus for certain properties and that the subsequent suits were legally barred under Order II Rule 2(2) of the Civil Procedure Code. The court dismissed the appeals and upheld the trial court's decision to grant partition for certain properties and dismiss the claims for others.
Issues: The issues involved the entitlement to partition and separate possession of various properties, the validity of the final decree, and the legality of filing subsequent suits for the same properties without obtaining leave from the court.
Ratio Decidendi: The court held that the appellant failed to establish joint family nucleus for certain properties and that the subsequent suits were legally barred under Order II Rule 2(2) of the Civil Procedure Code. The court also emphasized the importance of obtaining leave from the court before filing subsequent suits for the same cause of action.
Final Decision: The appeals were dismissed, and the trial court's decision to grant partition for certain properties and dismiss the claims for others was upheld. No costs were awarded due to the close relationship of the parties.
Appeal filed against the Judgment and Decree, dated 29.08.1997 made in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai. The appeal in A.S.No.931 of 1997 is preferred by the plaintiff in O.S.No.8662 of 1995 against the Judgment and Decree, dated 29.08.1997 made in the said suit on the file of the VII Assistant Judge, City Civil Court, Chennai.
2. The appeal in A.S.No.26 of 2001 is preferred by the plaintiff in O.S.No.2967 of 1998 against the Judgment and Decree, dated 28.06.2000 made in the said suit, on the file of the VII Additional Judge, City Civil Court, Chennai.
3. Tr.A.S.No.265 of 2007 is preferred against the Final Decree, dated 01.04.2005 made in I.A.No.959 of 2002 in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai. The appellant herein was the first defendant in the suit in O.S.No.8662 of 1995.
4. In all these appeals, for the sake of convenience, the appellant in A.S.No.931 of 1997 is referred to as appellant and the first respondent in A.S.No.931 of 1997 is referred to as first respondent.
5. The suit in O.S.No.8662 of 1995 is the first suit filed by the appellant in A.S.No.931 of 1997 and the appeal in A.S.No.26 of 2001 is also preferred by the appellant against his brother Chandramohan and another, seeking partition of half share in the schedule mentioned property therein. In the schedule of properties, there are six items and out of which, the first item is a residential house, situated in Sillukkuvarpatti village, Nilakottai Taluk, Dindugal District. The second item is a wet land with a well, pumpset, which is being cultivated by the second respondent in the appeal. Item 3 to 6 are the properties situated at Chennai. According to the appellant / plaintiff, the first and second items of properties, situated at Sillukkuvarpatti village are the ancestral properties of himself and his brother, the first respondent herein and item Nos. 3 to 6 are the properties purchased by the first respondent from and out of the income of the ancestral properties at Chennai.
6. According to the first respondent, when the appellant was a four year old boy, his father and mother expired and the first respondent was at the age of 12 years. When the first respondent was 15 years old, he came to Madras and did coolie work at the flower market, Chennai, and out of his own income and hardwork, started business at flower market, since the property at Sillukkuvarpatti was already mortgaged by his father, for a sum of Rs.350/- to one Kuruvammal at Sillukkuvarpatti and the agricultural lands were enjoyed by the said Kuruvammal till 1960. After 1960, since the said Kuruvammal told the first respondent to redeem the mortgage, the first respondent approached the second respondent and redeemed the mortgage from Kuruvammal, after getting money from the second respondent and thereby transferred the mortgage in favour of the second respondent. Out of his hard work, he brought up the appellant and provided education up to B.A., and also a law degree, so as to get a job in the State Secretariat, Chennai, and also arranged his marriage and that the appellant and the first respondent were living separately.
7. The first respondent has further stated that his wife, Mrs.M.Kamatchiammal, purchased the property mentioned as Item Number 4 by her earning in vegetable vending business and the third and sixth items of properties were purchased jointly by himself and his uncle, K. Alagarsamy from and out of the income of their partnership business. The fifth item of property was purchased in the name of his son as self-acquired property and therefore, the appellant is not entitled to claim any share in items 3 to 6 of the schedule mentioned properties, as the same were not the joint family properties of the appellant.
8. On the side of the appellant, he was examined as P.W.1. A Copy of the partition agreement between the appellant and the first respondent, dated 02.03.1994 wa
