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HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL
Ayyavu Asari & Others
Versus
Subbu Asari (deceased) & Others
S.A.No.1433 of 1995
Decided on : 09-08-2011
PARTITION SUIT - TITLE - POSSESSION - INJUNCTION - SALE DEED - REGISTRATION - ADMISSIBILITY OF DOCUMENTS - PARTIAL PARTITION - IMPLEADING NECESSARY PARTIES - REMAND - CIVIL PROCEDURE CODE, 1908 - ORDER 41 RULE 33, ORDER 42 RULE 1.
Fact of the Case:
The Plaintiff filed a suit for partition and separate possession of his 1/4th share in the suit property, declaration of title to suit item 3 and for recovery of vacant possession of the same and profits from the date of suit, or in the alternative for partition and separate possession of 1/4th share in suit item 1 and for profits from the date of suit. The trial court dismissed the suit holding that the Plaintiff failed to establish his title to the suit property. The First Appellate Court allowed the appeal and granted a decree in favour of the Plaintiff. The Defendants preferred a Second Appeal.
Finding of the Court:
The Second Appeal was allowed and the Judgment and Decree of the trial court and the First Appellate Court were set aside. The Court held that the Plaintiff failed to establish his title to the suit property and that the First Appellate Court erred in declaring the title of the Plaintiff in respect of item 4 of the suit property and also in granting permanent injunction in favour of the Plaintiff. The Court also held that the Plaintiff should have filed a suit for general partition including Kannaiyuram and his properties, if he claimed partition. The Court further held that the trial court should have gone into the issue whether Exs.A.3 and A.4-Letters can be looked into in the absence of registration, as required under the Indian Registration Act. The Court also held that the suit for partial partition is not maintainable for want of impleading all necessary parties to the suit. The Court remanded the suit back to the trial court for fresh disposal in accordance with law.
Issues: 1. Whether the Plaintiff has established his title to the suit property? 2. Whether the First Appellate Court erred in declaring the title of the Plaintiff in respect of item 4 of the suit property and also in granting permanent injunction in favour of the Plaintiff? 3. Whether the Plaintiff should have filed a suit for general partition including Kannaiyuram and his properties, if he claimed partition? 4. Whether the trial court should have gone into the issue whether Exs.A.3 and A.4-Letters can be looked into in the absence of registration, as required under the Indian Registration Act? 5. Whether the suit for partial partition is maintainable for want of impleading all necessary parties to the suit?
Ratio Decidendi: 1. The Plaintiff failed to establish his title to the suit property. 2. The First Appellate Court erred in declaring the title of the Plaintiff in respect of item 4 of the suit property and also in granting permanent injunction in favour of the Plaintiff. 3. The Plaintiff should have filed a suit for general partition including Kannaiyuram and his properties, if he claimed partition. 4. The trial court should have gone into the issue whether Exs.A.3 and A.4-Letters can be looked into in the absence of registration, as required under the Indian Registration Act. 5. The suit for partial partition is not maintainable for want of impleading all necessary parties to the suit.
Final Decision: The Second Appeal was allowed and the Judgment and Decree of the trial court and the First Appellate Court were set aside. The suit was remanded back to the trial court for fresh disposal in accordance with law.
1. The Appellants/Defendants 1, 3, 4, 6 and 7 have projected the Second Appeal before this Court as against the Judgment and Decree dated 06.02.1995 in A.S.No.108 of 1992 passed by the Learned Subordinate Judge, Tiruvallur.
2. Before the trial Court, in the main suit, on the side of the 1st Respondent/Plaintiff (later deceased), witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.13 have been marked. On the side of the Appellants/Defendants 1, 3, 4, 6 and 7 and the 2nd Respondent/ 5th Defendant, witnesses D.W.1 and D.W.2 have been examined and Ex.B.1 has been marked.
3. The trial Court, after contest and upon appreciation of oral and available documentary evidence on record, in the Judgment in O.S.No.786 of 1973 filed by the 1st Respondent/Plaintiff, has, inter alia, held that there is no clear evidence on the side of the 1st Respondent/ Plaintiff as to the possession of the Plaint schedule properties and further that there is no clear evidence on the side of 1st Respondent/ Plaintiff that Naina Achari lived jointly with his brothers. Moreover, there is also no clear evidence as to the partition alleged by the 1st Respondent/Plaintiff and that the Sale Deed dated 22.05.1958 and 21.3.1959 are not true and valid. That apart, the trial Court has also observed that the 1st Respondent /Plaintiff cannot base his claim with regard to the property covered under Ex.A.3-Letter dated 22.05.1958 executed by Ramadoss Achari in favour of Kannaiyuram Achari and Ex.A.4-Letter dated 21.03.1959 executed by Mottai Achari and others in favour of Kannaiyuram in view of his purchase under Ex.A.2-Sale Deed dated 24.07.1972. Added further, it has opined that even though Ex.A.2-Sale Deed 24.02.1972 is a true transaction, the same is not valid, since the 1st
Respondent/Plaintiff cannot derive any title to the property covered as per Ex.A.3-Letter dated 22.05.1958 and Ex.A.4-Letter dated 21.03.1959. Consequently, the trial Court has come to the conclusion that the 1st Respondent/ Plaintiff is not entitled to get the relief of partition or declaration and possession as prayed for in the Plaint and dismissed the suit, directing the parties to bear their own costs.
4. Felling aggrieved against the Judgment and Decree of the trial Court dated 19.12.1980 in O.S.No.786 of 1973, the 1st Respondent /Plaintiff (later deceased) has preferred the A.S.No.108 of 1992 before the First Appellate Court viz., Learned Subordinate Judge, Tiruvallur.
5. The First Appellate Court viz., the Learned Subordinate Judge, Tiruvallur, while passing the Judgment in A.S.No.108 of 1992 dated 06.02.1995, has resultantly allowed the Appeal (leaving the parties to bear their own costs) in granting a decree in favour of the 1st Respondent/Plaintiff (later deceased) declaring his title in respect of item 4 of the suit property. Also, it granted the relief of permanent injunction in favour of the 1st Respondent/Plaintiff against the Defendants and also passed a preliminary decree for partition and separate possession of the 1st Respondent/Plaintiff's share in respect of item 5 of the suit property and in respect of the 1st Respondent/1st Plaintiff's 1/4th share of item 1 of the suit property, besides granting a Decree for mesne profits in respect of item 1 of the suit property alone from the date of the suit etc. Further, the 1st Respondent/Plaintiff has been given the liberty to apply to the Court for appointment of a Commissioner for effecting division of his 1/4th share in item 1 and 5 and further to ascertain the mesne profits in respect of item 1.
6. The Appellants/Defendants 1, 3, 4, 5, 6 and 7 have preferred the Second Appeal before this Court, being aggrieved against the Judgment and Decree dated 06.02.1995 in A.S.No.108 of 1992 in regard to the declaration of title of the 1st Respondent/Plaintiff in respect of 4th item of the suit property and also as regards the grant of permanent injunction in favour of the 1st Respondent/Plaintiff etc.
7. At the time of admi
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