R.Shamugaraj v. R.Jeevarathinam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.04.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.217 of 2009andM.P.No.1 of 2009R.Shamugaraj.. Appellant(2nd Defendant)vs.1. R.Jeevarathinam2. R.Jagadambal3. R.Jayanthikumari4. A.Saraswathi5. R.Rajendran6. Nanjammal7. Rajalakshmi.. Respondents(Plaintiffs 1 to 3and Defendants 1,3 to 5)This second appeal is filed against the judgment and decree ofthe learned Principal District Judge of Coimbatore made inA.S.No.135 of 2005 dated 27.11.2007 confirming the judgment anddecree of the learned Principal Subordinate Judge of Coimbatore madein O.S.No.471 of 1999 dated 17.09.2005.For Appellant : Mr.J.RamakrishnanFor Respondents : No appearanceJ U D G M E N TThis second appeal is focussed by the original second defendant,animadverting upon the judgement and decree dated 27.11.2007 passedin A.S.No.135 of 2005 by the Principal District Judge, Coimbatore,confirming the judgment and decree of the trial Court, namely,Principal Subordinate Judge of Coimbatore, in O.S.No.471 of 1999. Forconvenience sake, the parties are referred to hereunder according totheir litigative status before the trial Court.2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of this secondappeal, would run thus: https://hcservices.ecourts.gov.in/hcservices/ The plaintiffs/respondents 1 to 3 filed the suit O.S.No.471 of1999 seeking the following reliefs:"-divide the 1st item of the suit property into 6 equalshares and allot three such shares to the plaintiffs;-permanent injunction restraining the 1 to 3defendants, their men, agents, servants, or anybody else, not tointerfere or encumbrance over the plaintiffs' property."D2 entered appearance and filed the written statement resisting thesuit.3. During trial, the first plaintiff/Jeevarathinam examinedhimself as P.W.1 and Exs.A1 to A19 were marked. On the side of thedefendants, D2 examined himself as D.W.1 and Exs.B1 to B42 weremarked.4. Ultimately, the trial Court allowed the suit, as againstwhich an appeal was filed by D2, for nothing but to be dismissed bythe First Appellate Court. Being disconcerted and aggrieved by thesaid judgement and decrees of both the Courts below, this secondappeal has been filed by D2 on various grounds and also suggestingthe following alleged substantial questions of law:"(a) Whether the suit is maintainable in law in theabsence of relief of declaration that Ex.B.29 is null andvoid and not binding on the plaintiffs apart from therelief of seeking set aside the Ex.B29 by paying propercourt fee?(b) Having regard to scope of Section 115 of theIndian Evidence Act whether the plaintiffs are estoppedfrom seeking the relief as prayed for in the present suit?(c) Whether in law present suit for partition ismaintainable in law when even according to the plaintiffsalready a partition had taken place in respect of suitproperties?"(Extracted as such)5. Heard the learned counsel for the appellant.6. A poring over and deep analysis of the typed set of papersincluding the copies of the judgment and decrees of both the Courtsbelow and consideration of the argument of the learned counsel forthe appellant would display and demonstrate that the respondents 1 to3 filed the suit O.S.No.471 of 1999 for partition on the mainground that the partition deed Ex.B29(Ex.A1) was not acted upon. https://hcservices.ecourts.gov.in/hcservices/

7. The learned counsel for the appellant in the Second Appeal/D2would develop his argument to the effect that D2 has been inpossession and enjoyment of his portion allotted under the partitiondeed; Ex.B29 is a registered partition deed which both sides cannotgive a go bye to it unless there is a prayer for declaring the saidpartition deed as null and void or sham and nominal etc., and thattoo after paying the Court fee and consequent decision emergingthereunder; however, in this case surprisingly and shockingly,despite the fact that the plaintiffs are parties to the partitiondeed, they have not chosen to seek for declaration and that paved theway for framing of substantial question of law.8. The learned counsel for the appellant in the Second Appeal inall fairness invited the attention of this Court to paragraph 8 ofthe trial Court judgment which would exemplify and convey that D2 theappellant in Second Appeal himself had filed the O.S.No.757 of 2001seeking partition based on the Will dated 06.01.1967 purported tohave been executed by his father Rangasamy and the very appellantherein clearly and categorically took up the plea in that suit, thatEx.B29 was not acted upon. Hence in these circumstances, I am at aloss to understand as to how in this Second Appeal, he could be heardto contend as though Ex.B29 is a valid piece of document whichrequires to be set aside. Both parties in unison without anydifference of opinion on Ex.B29 approached the Court that it was adocument which was not acted upon. Hence in my considered opinion nosubstantial question of law could be framed based on Ex.B29.9. En passant, I would like to point out a few admitted andindubitable facts. Rangasamy and Ramasamy were brothers who jointlypurchased the suit property and enjoyed it. After their demise,Rangasamy is represented by his legal heirs, viz., D1 his wife, P2and P3, the plaintiff's daughters, and D2 and D3 sons; D4 and D5 arerepresenting the said deceased Ramasamy. The very placing relianceon the Will purported to have been executed by Rangasamy loses itsimportance for the reason that Ex.B29 the partition deed according toD2 emerged and as such it is crystal clear as per his own version theparties have given a go bye to the Will and that Will was notimplemented.10. The recitals in Ex.B29 and the Will would not hang togetherand they would not go hand in hand. Further the act of D2 in filingthe suit will further worsen his case. Ex.B29 was not a piece ofdocument worthy of being acted upon. As such it is crystal clearthat antithetical stand was taken by D2, so as to some how or otherstall the partition process and as such, I could see no question oflaw, much less substantial question of law is involved in this case. 11. The learned counsel for the appellant would appropriatelyhighlight that once the Courts below arrived at the conclusion thatthere should be a preliminary decree and consequently a final decree https://hcservices.ecourts.gov.in/hcservices/ for partition so as to divide by metes and bounds, there was nojustification in granting a blanket injunction. I would like toagree with him. Since this appeal itself is disposed of at theadmission stage, I would like to remark and observe that the effectof injunction is that pending partition proceedings there shall notbe any alienation; however one co-sharer cannot get injunction asagainst another co-owner regarding enjoyment, and injunction grantedby both the Courts below shall be construed to the extent that tillfinalisation of partition, there shall not be any alienation of thesuit property.In the result, this Second Appeal is dismissed. No costs.Consequently connected miscellaneous petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar gmsTo1. Principal District Judge of Coimbatore2. Principal Subordinate Judge of Coimbatore.+ 1 cc to Mr.J.Ramakrishnan,Advocate,SR.12507S.A.No.217 of 2009KM(CO)EM/9.6.09