A.S.No.678 of 2017

THE HIGH COURT OF JUD ICATURE AT MADRAS

DATED: 19.10.2023

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

AND

THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR

A.S.No

.678 of 2017

and

C.M.P.No.18925 of 2023

1.Abdul Jalal

2.Sakheela Bee

...Appellants

Vs.

Mohammed Idris

...Respondent

Prayer: First Appeal filed under Section 96 of C.P.C., r/w. Order 41 Rule 1

of C.P.C., against the order and final decreetal order passed by the I-

Additional District and Sessions Judge (Fast Track-II), Cuddalore in

I.A.No.110 of 2012 in O.S.No.136 of 2009 on 11.08.2017.

For Appellants

: Mrs.Chitra Sampath, Senior Counsel

for Mr.C.Prasanna Venkatesh

For Respondent

: Mr.R.Agilesh

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A.S.No.678 of 2017

J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

This Civil Miscellaneous Petition in C.M.P.No.18925 of 2023 has

been filed seeking amendment of the schedule of property in the preliminary

decree dated 20.03.2012 as confirmed in A.S.No.913 of 2012 by this Court

in its judgment dated 08.06.2016. This appeal is against the final decree

passed by the Trial Court pursuant to the preliminary decree referred to

above.

2.The respondent sued for partition of his 1/2 share of the suit "A"

schedule property, measuring about 9,135 Sq.ft, which houses a Kalyana

Mandapam. The respondent had pleaded in the plaint that he along with the

1st appellant had purchased an extent of 4,360 Sq.ft. (10 cents) under a sale

deed dated 30.04.2023. After the said purchase, the property belonging to

the family, which was situate on the Western side of the property purchased

under Ex.A1, sale deed referred to supra was merged and a Kalyana

Mandapam was constructed in both the properties. Specifically pleading

that the property purchased under Ex.A1, sale deed and the Family property,

which was used for construction of the Kalyana Mandabam became the joint

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A.S.No.678 of 2017

property of the plaintiff and the 1st defendant by purchase and by

treatment, the plaintiff sought for 1/2 share in the entire "A" schedule

property measuring about 9,135 Sq.ft.

3.The said suit was resisted by the defendants, who are husband

and wife contending that the plaintiff never contributed anything either for

purchase of the land or construction of the Kalyana Mandabam and he was

only a name lender therefore, he is not entitled to a share. Considerable

reliance was placed on Ex.B1, an alleged release executed by the plaintiff,

acknowledging the title of the defendant.

4.The Trial Court on the above pleadings framed the following

issues in the suit:-

"i) Whether the plaintiff and the defendant are joint

owners of the suit properties.

ii) Whether the plaintiff is entitled to 1/2 share in the

suit properties.

iii) To what relief the plaintiff is entitled to.

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A.S.No.678 of 2017

The issues were recast on 07.03.2012 by adding the

following issue:-

iv)Whether the suit is barred by Order 2 Rule 2 of

C.P.C.

5.After trial, the Trial Court recorded a finding that the suit "A"

schedule property belongs to the plaintiff and the 1st defendant. Ex-B1

release cannot be looked into for want of registration. However, on the said

finding, the learned Trial Judge while granting a decree in respect of "A"

schedule property, declaring 1/2 share of the plaintiff, dismissed the suit in

respect of the "B" schedule movables. Aggrieved by the said judgment and

decree, the defendants preferred an appeal in A.S.No.913 of 2012 before

this Court. This Court proceeded on the assumption that the land that was

jointly purchased under Ex.A1, sale deed alone was the subject matter of the

suit. It however, agree with the findings of the Trial Court and dismissed

the appeal by confirming the judgment and decree of the Trial Court. There

was no further appeal.

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A.S.No.678