R.Palanisami & Ors. v. R.Subramania Gounder & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1295 of 2008and M.P.No.1 of 20081.R.Palanisami2.Chinnammal3.Parvathiammal... Appellants/Plaintiffsvs.1.R.Subramania Gounder2.S.Ramsenthil Kumar3.Theivam Ammal 4.Palanichamy Gounder5.Thulasimani Gounder6.Rajeswara Gounder7.Ponnusamy... Respondents/Defendants1 to 3,5,6, 8 &9 This second appeal is filed against the judgment and decreedated 2.7.2008 passed by the learned Principal Subordinate Judge,Erode, in A.S.No.115 of 2007, confirming the judgment and decreedated 23.4.2007 passed by the learned District Munsif cum JudicialMagistrate, Perundurai, in O.S.No.475 of 2004.For Appellants : Mr.P.ValliappanFor Respondents : Mr.N.Manokaran 1,2,4 & 5For Respondents 3,6 & 7 : No appearance JUDGMENTThis second appeal has been filed by the plaintiffs,animadverting upon the judgement and decree dated 2.7.2008 passed bythe learned Principal Subordinate Judge, Erode, in A.S.No.115 of2007, confirming the judgement and decree dated 23.4.2007 passed bythe learned District Munsif cum Judicial Magistrate, Perundurai, inO.S.No.475 of 2004. For convenience sake, the parties are referred tohere under according to their litigative status before the trialCourt.2. A summation and summarisation of the relevant facts, which areabsolutely necessary and germane for the disposal of this secondappeal, would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The appellants/plaintiffs filed the suit O.S.No.475 of 2004,as against as many as 9 defendants, seeking for partition on the mainground that 1/3rd undivided share was purchased by the plaintiffs'grand father Pongianna Gounder, vide Ex.B1-the sale deed dated23.3.1938. (b) Defendants 1 to 3 entered appearance and resisted the suit onthe ground that they purchased the 1/3rd undivided share in theproperties as per Ex.B2-the sale deed, dated 7.2.1955 and after suchpurchase, there was inter se partition among the purchasers, whichtook place even in the year 1955 and from that time onwards, they goteffected mutation in the Revenue records and they have been enjoyingthe same. Defendants 4 and 9 supported the claim of the plaintiffs.(c) During enquiry, the trial Court framed the relevant issues.The first plaintiff examined himself as P.W.1 along with oneSubramaniam as P.W.2 and Exs.A1 to A.4 were marked. The firstdefendant examined himself as D.W.1 along with two others and Exs.B1to B18 were marked. Exs.C1 to C4 were marked as Court documents.(d) Both the Courts below gave a categorical finding to theeffect that the suit was bad for non-joinder of necessary parties andadequate pleadings were not available in the plaint itself;absolutely there is no reason or basis found exemplified as to how 17shares emerge as per the plaintiffs and accordingly dismissed thesuit.(e) Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, this second appeal is focussed bythe plaintiffs on various grounds and also raising the followingsubstantial questions of law:3. Heard the learned counsel for the appellants/plaintiffs aswell as the learned counsel appearing for the respondents/defendants.4. The learned counsel for the plaintiffs would advance hisargument to the effect that even though there might be somedeficiency in the pleadings, yet, as per the well settled propositionof law, the plaint and written statement could be read together andif it is found that the parties proceeded with the trialunderstanding the real issues, the suit need not be dismissed as onenot backed up by proper pleadings; a mere utterance of oral partitionon the side of the defendants 1 to 3 in no way would control or limitthe right of the plaintiffs to seek for partition and accordingly, hewould pray for reversal of the judgements of both the Courts belowand for decreeing the suit. 5. At this juncture I would like to point out that the onus ofproof as well as the onus probandi is on the plaintiffs to provetheir case. Here, I call up and recollect the definition of onus https://hcservices.ecourts.gov.in/hcservices/ pobandi, as found in Black's dictionary, as under:"Onus Probandi: The burden of proof. The strictmeaning of the term 'onus probandi' is that, if no evidenceis adduced by the party on whom the burden is cast, theissue must be found against him."6. Here, in this case, the plaintiffs were expected to adduceadequate evidence. Adhering to the principle of onus probandi aloneboth the Courts below dismissed the claim of the plaintiffs. Adetailed analysis of the available records would display anddemonstrate that on the one side, the plaintiffs placing reliance onEx.B1-the sale deed dated 23.3.1938 would claim that they purchased1/3rd undivided share in certain properties, whereas, the defendants1 to 3 would contend that they purchased 1/3rd undivided share incertain properties. The core question arises as to what happened tothe remaining 1/3rd share and who are all entitled to that 1/3rdshare. There is precisely nothing to exemplify what is that wholeundivided property at all.7. In Ex.B1-the sale deed dated 23.3.1938, the recitals wouldevince that Ganapathy Iyer executed the sale deed in favour ofPongianna Gounder and that the vendor would claim as though he got itas per a sale deed, without specifying the details about the saledeed and from whom he acquired that right. As such, this couldremain totally unclarified and unexpounded on the plaintiffs' side.8. Similarly in Ex.B2-the sale deed dated 7.2.1955, executed byone Rawtha Gounder, son of Elaya Gounder, in favour of the propositusof D1 to D3, namely, (i) Ravutha Gounder, (2) Chinnasamy Gounder and(3) minor Rangasamy, transferring 1/3rd undivided share in certainproperties, the vendor under Ex.B2 would make no reference to thefact as to how he got the property. The same comments as advanced asagainst Ex.B1 is also applicable to Ex.B2.9. To the risk of repetition, without being tautologous, I wouldlike to point out that the alleged remaining 1/3rd undivided share isnot found established before both the Courts below and there is nowhisper about it in the pleadings also and it is not readily known asto who are all the others interested in the remaining 1/3rd share. 10. It is a trite proposition of law that there cannot be anypiecemeal partition and in a partition suit, all necessary partiesshould be added and only in their presence comprehensively apartition suit could be decided. As such, both the Courts below wereright in dismissing the suit with the aforesaid finding that the suitwas bad for non-joinder of necessary parties and also bad foradequate pleadings in support of the plaintiffs' prayer. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel for the defendants 1 to 3 would advancehis arguments correctly and convincingly that if at all theplaintiffs had any grievance that their 1/3rd undivided share, as perEx.B1, should be carved out from the larger undivided share, thenthey should not have waited for five decades to file the suit, whichwould bespeak volumes about the fact that already the partiesconcerned got satisfied with their respective possession andfurthermore, it also strengthens the plea of the defendants 1 to 3that there were inter se partition among the defendants and theirrelatives. According to the learned counsel for the defendants, nointerference with the findings of both the Courts below is warranted.12. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Hon'ble Apex Court. (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL,certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . "(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL. https://hcservices.ecourts.gov.in/hcservices/ A plain reading of those precedents would reveal and demonstratethat under Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved. Here as held supra, there is no substantial question oflaw is found exemplified. purely based on the factual analysis, boththe Courts below rendered their judgements. Hence, I could see nomerit in the second appeal. 13. However, the learned counsel for the plaintiffs would makean extempore submission that in matters where the suit suffers fromnon-joinder of necessary parties, the same should be remitted back tothe trial Court, so as to give an opportunity to the plaintiffs toadd parties and prosecute the matter further. 14. Whereas the learned counsel for the defendants wouldappropriately and correctly point out that this is not a case whereone or two parties left out unwittingly. But here the very natureand vendor of the plaint itself would bespeak that the plaintiffsthemselves are not aware of the owners of the remaining 1/3rdundivided share and in such a case, if the matter is remitted back,it would not serve the purpose.15. At this juncture, I recollect the following decision of thisCourt. (i) AIR 1999 Madras 71 – Sabasthi Nadar vs. Savurimuthu Nadarand another, certain excerpts from it would run thus:"11. The learned counsel for the respondent wouldfurther contend that at any rate, in a suit petition,impleading of parties can be done at any stage beforepassing of the final decree. The following are thedecisions which were relied upon by the learned counsel insupport of his point: (1) SwayamprakasamChidambaranathan v. R.vijayarangam, 1970 (1) MLJ 243, (2)R.A.Narasinga Rao v. Chunduru Sarada, A.I.R. 1976 A.P.996,(3) N.P.R.Nair v. A.Pillai Kumar Pillai, A.I.R. 1978Ker.152.12. I am unable to agree that these decisions could bepressed into service to contend that the findings as wellas the decree granted by the courts below have to besustained and that the unimpleaded parties can be orderedto be impleaded, so that they can take part in the finaldecree proceedings. It has to be borne in mind that in thevery decision of the Kerala High Court relied upon by thelearned counsel reported in, N.R.Nair v. A.Pillai, A.I.R.1978 Ker.152 it is specifically emphasised that theimpleadment of parties after the passing of the preliminary https://hcservices.ecourts.gov.in/hcservices/ decree is possible only on the basis that none of thequestions already settled by the preliminary decree wouldhave to be reopened by the court as a consequence of suchimpleadment and that the impleadment could be only on thecondition that further proceedings will be only on thebasis of the preliminary decree already passed. Thisdecision would only make it obvious that it will be aninjustice to the unimpleaded parties, if the court does notdismiss the suit for non-joinder of parties. This is whatwas emphasized in the, A.Ramachandra Pillai v. Valliamal,100 LW 486, cited earlier. If co-sharer who is entitled toraise his pleas on the merits of the suit is to be deprivedof his defence for no fault of himself and if the plaintiffcould be put on premium for not having impleaded anecessary party, it would spell clear injustice, and itwould only lead to multiplicity of proceedings.13. On the other hand the decision of the learnedSingle Judge of this court reported in SwayamprakasamChidambaranathan v. R.Vijayarangam, 1970 (1) MLJ 243 ismore practical as it holds that Order 1 Rule 10(2) of theCivil Procedure code gives power to the Court to impleadparties at any stage of the proceedings in a partitionsuit. The proceedings do not come to an end till thepassing of the final decree and therefore at the stage offinal decree proceedings also, parties can be impleaded.Similarly the judgment of the Division Bench of the HighCourt of Andhra Pradesh reported in Ramader AppalaNarasingha Rao v. Chundrur Sarada, A.I.R.1976 A.P.226, itis also to the effect that a party who was impleaded onlyafter passing of the final decree, can seek for settingaside the preliminary decree to do substantial justicebetween the parties having regard to the circumstances ofthe case.14. The position which emerge as a result of the aboveanalysis, in the context of the present case is that theplaintiff having deliberately suppressed the existence ofcertain other sharers and not having impleaded them asparty and the Genealogy having been proved to be incorrect, the suit deserves to be dismissed. Even atpresent no steps were taken by the plaintiff to implead allthe necessary parties who have been left out and the courtcannot take any initiative on its own under Order 1 Rule 10(2) of the Code of Civil Procedure in the absence of properparticulars relating to all parties who are left out. Butinstead of dismissing the suit in its entirety, in theinterest of justice, indulgence may be shown to theplaintiff by remanding the suit to the Trial court, givingopportunity to the plaintiffs to implead all the members of https://hcservices.ecourts.gov.in/hcservices/ the family who are necessary parties to proceed further inaccordance with law by giving opportunity to all parties toadduce further evidence if any to the court and to decidetheir claims on the merits afresh."(ii) AIR 2003 Himachal Pradesh 32 [Asha Sharma and others v.Amar Nath and others]16. A bare perusal of the above decisions would evince andconvey that fresh proceedings are not bared in view of the earlierproceedings having dismissed for want of adding all necessaryparties. 17. The learned counsel for the defendants 1 to 3 would submitthat this Court may not make any observation about the plaintiffs'right to file fresh suit as it would pave the way for perpetuallitigagtion and the defendants would be in turmoil and confusion.18. I would like to point out that it is for the plaintiffs towork out their remedy in the way known to law and in the event of theplaintiffs initiating any proceeding, it is for the defendants totake and pit all pleas known to law as against it.19. In the result, the second appeal is dismissed. No costs.Consequently, connected miscellaneous petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mskTo1.The Principal Subordinate Judge, Erode2.The District Munsif cum Judicial Magistrate, Perundurai3.The Section Officer, V.R.Section, High Court, Madras.+ 1 CC To Mr.N.Manokaran, Advocate SR NO.16898+ 1 CC To M/s.P.Valliappan, Advocate SR NO.16609S.A.No.1295 of 2008RSY {CO}TP/9.6.2009.