AS.No.389/2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.11.2022

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

AND

THE HONOURABLE MRS. JUSTICE N.MALA

AS.No.389/2015

1.Nagarajan

2.Anbalagan

.. Appellants /

Plaintiffs

Vs.

1.Manoharan

2.Nallaiyan

.. Respondents

/ Defendants

Prayer:- Appeal Suit filed under Order 41 Rule 1 read with Section 96 of

CPC against the judgment and decree dated 14.09.2009 made in

OS.No.10/2008 on the file of the learned Additional District Judge,

Pondicherry at Karaikal.

For Appellants

:

Mr.N.Manokaran

For Respondents

:

Mr. R.Sreedhar

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AS.No.389/2015

JUDGMENT

[Judgment of the Court was made by S.S.SUNDAR, J.,]

(1)

This appeal suit is filed by the plaintiffs in the suit in

OS.No.10/2008 on the file of the Additional District Court,

Puducherry, at Karaikal.

(2)

The appellants filed the suit for partition in OS.No.10/2008 for

partition of their 2/3^rd share in all the suit properties which are

described as A and B Schedule properties. The suit 'A' Schedule

property consists of building in door No.19/8 at Illaikara Sandhu,

Karaikal. Suit 'B' Schedule Properties consists of three items.

(3)

The appellants filed the suit as sons of one Dakshinamurthy who

died in the year 2000. The 1^st defendant in the suit is admittedly

the other son of Dakshinamurthy. The 2^nd defendant in the suit is

stated to be a tenant in respect of one of the suit properties. It is

admitted by the appellants before this Court that the suit for

partition was dismissed mainly on the ground that the appellants

have not impleaded their sisters who are the daughters of the said

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AS.No.389/2015

Dakshinamurthy, and who are also entitled to a share in the

properties of Dakshinamurthy.

(4)

As regards 'A' schedule property, admittedly, the properties

belonged to a Devasthanam. The Trial Court dismissed the suit in

respect of 'A' schedule only on the ground that the tenant of 'A'

Schedule property is not impleaded as a party to the proceedings. It

may not be proper to dismiss the suit merely on the ground that the

tenant is not made as a party. Even if the tenant is not a party, the

appellants can take symbolic possession of the property subject to

the rights of the tenant to remain in possession. However, the

tenant may be a proper party if the plaintiffs want to seek further

remedy before the Court as against the tenant also. In the absence

of any further relief and the relief that is prayed for in the suit is not

likely to affect the tenant, the suit cannot be dismissed on the

ground that the appellants have not impleaded the tenant.

(5)

Though this Court finds no document by the appellants to show the

availability of Item [b] of 'B' Schedule properties for partition, the

learned counsel for the appellants relied upon a judgment of a

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AS.No.389/2015

Division Bench of this Court in the case of A.Ramachandra Pillai

Vs. Valliammal [died] reported in 1987 [100] LW 486, wherein

the Division Bench relied upon the principles reiterated by Hon'ble

Supreme Court that a suit for partition is liable to be dismissed for

non joinder of any one of the parties. However, the Division Bench

went further and held that though the suit is liable to be dismissed

as not maintainable, it would be proper that all the findings on

merits should also be set aside and leave all the issues at large

while remitting the matter. Though the Division Bench has

observed that the decision on other issues can be relegated to an

independent suit that may be filed in future, in this case, having

regard to the facts, we are inclined to remit the matter to the Trial

Court. Therefore, the other findings on merits are also set aside.

(6)

As regards 'B' Scheduel property, it is contended that the 2^nd item

which is described under [b], namely th