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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. RAJAMANICKAM, J.
V.G. Ramasamy – Appellant
Versus
V.G. Sreenivasan – Respondent
S.A. No. 1433, 1611 of 2002, Cross-Objection No. 36 of 2018
Decided On : 05-12-2018
Registration Act - Section 17 - Plaintiff against judgment and decree passed by First Additional District Judge - Trial courts - suit property absolutely belongs to plaintiff is not correct – However he set aside findings of trial court that the suit property in absolutely belongs to plaintiff therein - Feeling aggrieved defendants have filed the second appeal in - plaintiff in Has filed the second appeal in plaintiff in has filed cross objection to set aside findings of first appellate court that trial courts findings that suit property absolutely belongs to plaintiff is not correct - For the sake of convenience parties are referred to as described in file of Sub-Judge – Held, Trial court taking into consideration of aforesaid facts came to conclusion that suit properties which are mentioned in Oabsolutely belongs to plaintiff therein viz. but first appellate court relying upon the decision of this court in and Others and Others held that since the plaintiff in alone had paid court fees and other brothers have not paid court fees, they cannot claim exclusive right or title over the respective shares - In and Others vs. and Others defendants contested partition suit, but trial court found that the defendants also entitled to get share in the amount which was deposited in bank - Appeal filed by defendants also dismissed. Subsequently bank had deposited amount before court and at that time defendants had filed an application to issue a cheque for amount as per preliminary decree trial court had dismissed the said application stating that they did not pay court fees to allot their shares against which defendants have filed Civil Revision Petition before this court - This court has observed that since defendants have not paid court fees they cannot claim share - But in this case, facts are totally different - In this case both parties entered compromise and based on said compromise final decree was passed straightaway and hence question of paying court fees by defendants does not arise - So findings of first appellate court that since defendants have not paid court fees right or title not passed on them through said compromise decree cannot be accepted - Therefore these second appeals are liable to be dismissed and cross objection has to be allowed and judgments and decrees passed by trial court have to be restored - Accordingly these points are answered - All these facts would clearly show that said compromise decree was acted upon and therefore in view of aforesaid decision of Hobble Supreme Court plaintiff in O.S. No. is stopped from taking a plea that said decree will not bind upon him – Appeal allowed
JUDGMENT :
P. RAJAMANICKAM, J.
1. S.A. No. 1433 of 2002 has been filed by the defendants 2 and 3 against the judgment and decree passed by the First Additional District Judge of Dharmapuri District at Krishnagiri in A.S. No. 45 of 1998 dated 29.11.1999 confirming the judgment and decree passed by the Sub-Judge, Krishnagiri in O.S. No. 38 of 1995 dated 29.01.1998.
S.A. No. 1611 of 2002 has been filed by the plaintiff against the judgment and decree passed by the First Additional District Judge of Dharmapuri District at Krishnagiri in A.S. No. 47 of 1998 dated 29.11.1999 confirming the judgment and decree passed by the Sub-Judge, Krishnagiri in O.S. No. 176 of 1992 dated 29.01.1998.
Cross Objection No. 36 of 2018 in S.A. No. 1433 of 2002 has been filed by the plaintiff in O.S. No. 38 of 1995 to set aside the findings of the First Appellate Court that the trial court's finding that the suit property absolutely belongs to the plaintiff is not correct.
2. The first respondent in S.A. No. 1433 of 2002 viz. V.G. Srinivasan has filed a suit in O.S. No. 49 of 1992 on the file of the District Munsif, Harur, for permanent injunction restraining the defendants therein from trespassing into the suit property. The said suit was subsequently transferred to Sub-Judge, Krishnagiri and renumbered as O.S. No. 38 of 1995. The third defendant in that suit viz. V.G. Murugesan has filed a suit in O.S. No. 176 of 1992 on the file of the Sub-Judge, Krishnagiri, to divide the suit 'A' schedule properties therein into forty equal shares and allot nine such shares to him and for permanent injunction restraining the defendants therein from alienating or encumbering Item No. 2 of the suit 'B' schedule properties therein. The learned Sub-Judge, Krishnagiri, by the common judgment dated 29.01.1998 has decreed the suit in O.S. No. 38 of 1995 without costs and dismissed the suit in O.S. No. 176 of 1992 without costs. Aggrieved by the same, the defendants in O.S. No. 38 of 1995 have filed an appeal in A.S. No. 45 of 1998 and the plaintiff in O.S. No. 176 of 1992 has filed an appeal in A.S. No. 47 of 1998 on the file of the First Additional District Judge of Dharmapuri District at Krishnagiri. The learned First Additional District Judge of Dharmapuri District at Krishnagiri by the common judgment dated 29.11.1999 has dismissed both the appeals without costs. However, he set aside the findings of the trial court that the suit property in O.S. No. 38 of 1995 absolutely belongs to the plaintiff therein. Feeling aggrieved, the defendants 2 and 3 in O.S. No. 38 of 1995 have filed the second appeal in S.A. No. 1433 of 2002. The plaintiff in O.S. No. 176 of 1992 has filed the second appeal in S.A. No. 16 of 2002. The plaintiff in O.S. No. 38 of 1995 has filed cross objection No. 36 of 2018 in S.A. No. 1433 of 2002 to set aside the findings of the first appellate court that the trial court's findings that the suit property absolutely belongs to the plaintiff is not correct. For the sake of convenience, the parties are referred to as described in O.S. No. 176 of 1992 on the file of the Sub-Judge, Krishanagiri.
3. The averments made in the plaint in O.S. No. 176 of 1992 are, in brief, as follows:
The plaintiff and the defendants 1 to 3 are brothers, the fourth defendant is their mother and the defendants 5 to 7 are their sisters. The plaintiff, the defendants 1 to 3 and 5 to 7 are the children of one Govinda Chetty. The said Govinda Chetty died intestate in the year 1960 leaving behind the plaintiff and the defendants as his legal representatives. The said Govinda Chetty, during his life time as karta and manager of the joint family, had purchased several properties. The said Govinda Chetty got one more son viz. V.G. Kannan. The said V.G. Kannan separated from the joint family by taking his share and executed the registered release deed in the year, 1980 and hence, he was not added as a party. After the death of Govinda Chetty, the plaintiff and the defendants have enjoyed the f
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