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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. Sathish Kumar, J.
Sivathanulingam - Appellant
Versus
Sankaralingam (Died) & Others - Respondent
S.A.(MD)No. 768 of 2006
Decided On : 27-01-2020
Civil Procedure Code , 1908 - Section 100 - Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Section 12 - Section 37 - Suit property - Suit property originally belonged to one is only daughter of said - After death got plaint schedule property - After death her daughter got plaint schedule property - Said had only son, who is father of plaintiffs and fifth defendant - Had enjoyed property as its absolute owner - Property was looked after who are brothers mother - Said were looking after property on behalf - After death his son looked after property - Have no title whatsoever to plaint schedule property - Father of plaintiffs died - Thereafter, defendants attempted to disturb plaintiffs enjoyment over plaint schedule property - Fifth defendant married daughter of third defendant - Plaintiffs and fifth defendant are co-owners - They are each entitled to one fifth share in plaint schedule property - Hence, suit for partition and permanent injunction – Held , Similar view is also taken by this Court - This Court, in Paragraph of said judgment, has held that Court fee was never an issue raised by defendants in Court below and, therefore, Trial Court did not frame it as an issue and there was no decision rendered in that regard also - In such circumstances, power and jurisdiction of Appellate Court in that regard is relevant to be considered, as enshrined and held that there is no suomotu power on Appellate Court to decide about correctness of Court fee - Since it is correctness of order passed by lower Court in respect of Court fee, same alone can be decided by Appellate Court and held that power of Appellate Court in deciding about correctness of Court fee itself is possible only when Lower Court has given a decision about Court fee and if defendants have not raised any objections about correctness of Court fee and no issue was framed, Appellate Court cannot, on its own motion, consider its correctness - Having regard to above judgments, this Court is of view that as Court fee issue was never an issue and not even pleaded in written statement, first Appellate Court going into question and holding that Court fee paid is not correct, is patently wrong - It is well settled that in case of co-owners, possession of one is in law possession of all, unless ouster or exclusion is proved - To continue to be in joint possession in law, it is not necessary that plaintiff should be in actual possession of whole or part of property - So long as right to share and nature of property as joint is not disputed, Law presumes that he is in joint possession, unless he is excluded from such possession - Therefore, finding of first Appellate Court, without any pleadings in this regard, is erroneous - Similarly, absolutely, there is no pleading in entire written statement as to nature of possession - There is no pleading as to ouster, etc - entire written statement is only vague denial and there is no specific averment made in written statement - There is no pleading as to partition among male heirs alone - Without any pleadings, first Appellate Court has presumed partition and held that plaintiffs are not entitled to partition - Such finding of first Appellate Court is also against well settled position of law - Trial Court has analyzed factual aspects and granted partition on basis of their entitlement - First Appellate Court, on technical ground and on its own presumption, has held that defendants are in possession more than statutory period and plaintiffs are excluded and there was partition among male legal heirs - Such conclusion without any materials or pleadings in written statement is erroneous - Such being fact, this Court is of view that finding of first Appellate Court is necessarily to be interfered with - Accordingly, substantial questions of law are answered in favour of appellant/first plaintiff herein - Appeal is allowed
JUDGMENT :
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree made in A.S.No.203 of 2005 on the file of the Principal Sub Court, Tirunelveli, dated 21.04.2006, reversing the judgment and decree made in O.S.No.24 of 1995, on the file of the Additional District Munsif Court, Valliyur, dated 18.01.2005.
Aggrieved over the judgment and decree of the first Appellate Court, reversing the judgment and decree of the Trial Court, which granted a decree of partition in favour of the plaintiffs, the present Second Appeal is filed.
2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.
3. The brief facts leading to the filing of the suit are as follows:
4. The third and fourth defendants filed a written statement stating that originally the property belonged to the parents of the third defendant. The parents of the third defendant executed a Will in the year 1973 in favour of the third defendant. After the death of the parents, the third defendant became the absolute owner of the suit property. He is in possession and enjoyment of the property. On 08.12.1994, the third defendant executed a sale deed in respect of the suit property in favour of the fourth defendant. The plaintiffs have no right or title over the suit property. They are strangers to the suit property. Hence, they prayed for dismissal of the suit.
5. Based on the above pleadings, the Trial Court has framed the following issues:
(ii) Whether the plaintiffs are entitled to permanent injunction? and
(iii) To what relief?"
6. On the side of the plaintiffs, P.W.1 was examined and Ex.A.1 was marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.10 were marked.
7. Though the suit has been filed as if the property of Marthanda Nadar devolved on Valliammal, his only daughter, after the death of Valliammal, the property was devolved on her only daughter Esakkiammal alias Esakki Pillai. After the death of Esakkiammal alias Esakki Pillai, her son Perumal Nadar, the father of the plaintiffs and the fifth defendant, became entitled to the suit property. Based on the admitted case of the defendants, the Trial Court recorded a finding to the effect that the property belonged to Marthanda Nadar, after his death, the same belonged to his only daughter Valliammal. The said Valliammal had one daughter and three sons, namely Esakkiammal, Arumuga Nadar, Subramaniya Nadar and Rasaiah Nadar and held that there is no partition in respect of the suit property. Th
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