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IN THE HIGH COURT OF MADRAS
P. RAJAMANICKAM, J.
C. Kumarasamy - Appellant
Versus
P. Thamayanthi and Ors. - Respondents
S.A. Nos. 181, 182 of 2013 and M.P. No. 1 of 2013
Decided On : 23-05-2019
Registration Act, 1908 - Section 17 - Transfer of Property Act, 1882 - Section 123 - Counter Claim - Investigation - First defendant had filed written statement along with counter claim to declare that she is absolute owner of suit properties and for permanent injunction to restrain plaintiff and second defendant their men agents etc from interfering with her peaceful possession and enjoyment of suit properties - Second Additional Sub Judge Erode by judgment had passed a preliminary decree to divide suit properties in to three equal shares and allot one such share to plaintiff - However she dismissed counter claim – Held, He also denied allegation that he has taken away all original documents from custody of their mother forcibly - Therefore this Court is of view that plaintiff has fully complied with requirements of Order aforesaid decision also will not help first defendant - Case first defendant has taken summons to Sub Registrar to produce register thumb impressions - Accordingly staff from Sub Registrars Office has appeared before Trial Court and produced certified copy of settlement deed said to have been executed Grounder and marked said staff also produced certified true copy of thumb impression register and marked but first defendant has not taken any steps to send Forensic Lab for getting Finger Print Experts Opinion especially when admitted thumb impression Grounder is very much available in partition deed - Further as already pointed out that first defendant did not take coercive steps to secure attesting witnesses and examine before Court as contemplated Section Indian Evidence Act - Further first defendant has not give any satisfactory explanation for non production of original settlement deed - Trial Court taking into consideration of all aforesaid facts has rightly dismissed counter claim and decreed suit and passed preliminary decree for partition but First Appellate Court erroneously reversed well considered judgment of Trial Court and hence judgment and decree passed by First Appellate Court have to be set aside - Accordingly substantial questions of law are answered in favor of appellant plaintiff – Appeals allowed
JUDGMENT :
P. Rajamanickam, J.
1. S.A. No. 181 of 2013 has been filed by the plaintiff against the judgment and decree passed by the First Additional District Judge, Erode in A.S. No. 91 of 2011 dated 31.07.2012 reversing the judgment and decree passed by the Second Additional Sub Judge, Erode in O.S. No. 330 of 2008 dated 26.09.2011.
2. S.A. No. 182 of 2013 also has been filed by the plaintiff against the judgment and decree passed by the First Additional District Judge, Erode in A.S. No. 92 of 2011 dated 31.07.2012 reversing the judgment and decree passed by the Second Additional Sub Judge, Erode in counter claim filed in O.S. No. 330 of 2008 dated 26.09.2011.
3. The appellant herein had filed a suit in O.S. No. 330 of 2018 on the file of the Second Additional Sub Judge, Erode to divide the suit properties into three equal shares and allot one such share to him. The first defendant had filed written statement along with counter claim to declare that she is the absolute owner of the suit properties and for permanent injunction to restrain the plaintiff and the second defendant, their men, agents etc from interfering with her peaceful possession, and enjoyment of the suit properties. The learned Second Additional Sub Judge, -Erode by the judgment dated 26.09.2011 had passed a preliminary decree to divide the suit properties in to three equal shares and allot one such share to the plaintiff. However, she dismissed the counter claim. Aggrieved by the granting of preliminary decree for partition, the first defendant had filed an appeal in A.S. No. 91 of 2011 and against the dismissal of her counter claim, she filed an appeal in A.S. No. 92 of 2011 on the file of the First Additional District Judge, Erode. The learned Additional District Judge, Erode by the common judgment dated 31.07.2012 had allowed both the appeals and dismissed the suit. However, he allowed the counter claim and granted decree for declaration and permanent injunction as prayed for. Feeling aggrieved, the plaintiff has filed the present second appeals.
4. For the sake of convenience, the parties are referred to as described before the Trial Court.
5. The averments made in the plaint are in brief as follows:
6. The averments made in the written statement and counter claim filed by the first respondent are in brief as follows:
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