S.A.Thirumal Thevar v. Kamalammal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.09.2009CORAMTHE HONOURABLE MR.JUSTICE S.TAMILVANANS.A.No.1088 of 20031. S.A.Thirumal Thevar,2. Ambal Ammal,3. Thangamani ... Appellants/Defendants vs.1. Kamalammal,2. Hari Narayanan,3. Sridharan,4. Shanthakumari,5. S.Babu,... Respondents/LR's of Plaintiff Second Appeal filed under Section 100 of Civil Procedure Code,against the Judgment and Decree dated 26.02.2002 made in A.S.No.354of 1987, on the file of the VI Additional City Civil Judge, Chennai,confirming the Judgment and Decree dated 06.03.1987 made inO.S.No.8333 of 1981, on the file of the XIII Assistant City CivilJudge, Chennai.For appellants : Mr.S.V.Jayaraman, Senior Counsel, for Mr.R.Ganesan, For respondents : Mr.A.Radha Krishnan,JUDGMENTThe Second Appeal has been preferred by the defendants in thesuit and they are the appellants in A.S.No.354 of 1987 on the fileof the VI Additional City Civil Judge, Chennai. The Judgment andDecree dated 06.03.1987 passed by the XIII Assistant City CivilJudge, Chennai, in O.S.No.8333 of 1981 had been confirmed and theappeal was dismissed by the appellate Court.2. It is an admitted fact that one Somu Thevar had filed thesuit in O.S.No.8333 of 1981, seeking delivery of possession of the https://hcservices.ecourts.gov.in/hcservices/ suit house against his son S.A. Thirumal Thevar, the first appellantherein and two others. After the trial, the suit was decreed by thetrial Court by judgment dated 06.03.1987. Aggrieved by which, theappellants herein preferred an appeal before XI Additional CityCivil Court, confirming the judgment and decree the appeal wasdismissed by the said Court. Aggrieved by which, second appeal inS.A.No.622 of 1988 was filed by the appellants herein. This Courtby judgment dated 24.07.2001 allowed the second appeal and remandedthe matter back to the lower appellate Court for fresh disposal. Itis not in dispute that this Court by judgment dated 24.07.2001 hadset aside the judgment rendered by the lower appellate Court. Afterthe remand, the first appellate Court has passed the impugnedjudgment on 26.02.2002. Aggrieved by which, the second appeal hasbeen preferred by the appellants/defendants.3. In the second appeal the following substantial question oflaw has been raised by the appellants herein:" Whether having found that the possession ofthe suit property is with the appellants and in asmuch as the plaintiff died and having held that thefirst appellant is the son of the plaintiff, theLower Appellate Court would have referred theappellants to file a partition suit?"4. Mr. S.V. Jayaraman, the learned senior counsel appearingfor the appellants herein, drew the attention of this Court to theimpugned judgment dated 26.02.2002 passed by the Court below,wherein, the second point for determination as framed is whether theappellants are entitled to delivery of possession of the property.In paragraph No.8 of the impugned judgment, the Court below has heldthat since, Somu Thevar died the first appellant/first defendantbeing his son and one of the legal heirs of the said deceased, wasentitled to his share in the property left by Somu Thevar, who hadbeen the plaintiff in the suit. The Court has held that thedefendants are in possession and enjoyment of the property and hencethe respondents are not entitled to delivery of possession of thesuit property without establishing their title to the property andfurther held that the remedy open to the respondents herein is toseek partition and separate possession of their share in theproperty. The Court has held that the suit property belonged toSomu Thevar and hence partition would be the appropriate remedysince the first appellant is one of the legal heirs of the deceased.However, the appeal was dismissed by the Court below. Learned seniorcounsel appearing for the appellants contended that having held thatthe first appellant being the son of the deceased Somu Thevar was https://hcservices.ecourts.gov.in/hcservices/ entitled to his share by way of partition, the Court below could nothave dismissed the appeal preferred by the appellants herein.5. Per Contra, Mr.A.Radha Krishnan, learned counsel appearingfor the respondents herein submitted that subsequently Somu Thevarexecuted a Settlement deed in favour of the respondents 4 &5 andtherefore they are entitled to the entire property. However, nosuch document was marked before the trial Court or before the firstappellate Court by the respondents and further, without marking thedocument and establishing the genuineness and legality of thealleged document, the respondents cannot raise their defencedisputing the right of the other shares. Having found that the firstappellant is also entitled to a share as one of the legal heirs ofthe deceased Somu Thevar and the remedy would be partition andseparate possession of the property, the Court below could not havedismissed the appeal. Hence the impugned judgment and decree passedin A.S. No.354 of 1987 is self-contradictory and against thefindings of the court below.6. On the aforesaid facts and circumstances, I answered thesubstantial question of law framed in the second appeal in favour ofthe appellants and against the respondents. Accordingly, the appealhas to be allowed and impugned judgment and decree passed by thefirst appellate Court are to be set aside, since both the firstappellant and the respondents 1 to 5 are class-I legal heirs of thedeceased Somu Thevar, who was the plaintiff in the suit. The suitseeking recovery of possession of the suit property has to bedismissed since, neither the appellants nor the respondents canclaim exclusive title to the suit property, after the demise of SomuThevar without establishing their exclusive right, when the propertyis in the possession and enjoyment of the first appellant herein,who is also a legal heir of the deceased.7. It is admitted by the both learned counsel that there arepossibilities for settlement, between the parties. The partition ofthe property has to be worked out and they can seek the remedy asper procedure known to law, which cannot be decided in the secondappeal, unless there is mutual consent between the PartiesSimilarly, the genuineness and validity of the alleged SettlementDeed executed by Somu Thevar in favour of the respondents 4 & 5herein, cannot be decided in the second appeal, since it requiresevidence. Hence the short point has to be decided in the secondappeal is whether the impugned judgment and decree dated 26.02.2002passed by the court below has to be set aside on the ground that thesame is self-contradictory. Having found that the remedy availableto the parties as partition, the court below could not have https://hcservices.ecourts.gov.in/hcservices/ dismissed the appeal and therefore, having answered to thesubstantial question of law in favour of the appellants, I found itjust and reasonable to allow the appeal and set aside the judgmentand decree passed by both the Courts below. Accordingly, thissecond appeal is allowed and the judgment and decree passed by thecourts below is set aside. It is open to the both parties to seektheir remedy for partition and separate possession or any otherremedy as per the procedure known to law. Both the Parties aredirected to bear their own costs in the second appeal.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1.The Registrar,City Civil Court, Chennai.2.The Section Officer,VR Section, High Court,Madras.+1cc to Mr.A.Radha Krishnan, Advocate Sr 46095+1cc to Mr.S.Sathyamurthy, Advocate Sr 46150RS(CO)km/19.11.S.A.No.1088 of 2003