C.E.Sathyanarayana Reddi v. C.E.Sulochana

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.08.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE R.SUBBIAHO.S.A.No.355 of 2008C.E.Sathyanarayana Reddi.. AppellantVs.

C.E.Sulochana2. C.E.Surayanarayanan3. Samyukta Paramahamsan4. Lakshmibanu Jayaprakash ... RespondentsAppeal filed under Order 36 Rule 9 of O.S. Rules r/w Clause15 of Letters Patent against the order dated 3.1.2008 made in Application No.3328 of 2007 in C.S.No.129 of 2007.For Appellant : Mr.V.R.SridharanFor Respondent : Mr.A.VenkatesanJ U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM,J)Challenge is made to the judgment of the learned Single Judge ofthis Court made in O.A.No.3328 of 2007 in C.S.No.129 of 2007. Bythe said judgment, the order of rejection of C.S.No.129 of 2007, asuit for partition, was made, by allowing the application inA.No.3328 of 2007.

The appellant/plaintiff filed the said C.S.No.129 of 2007 forpartition seeking 1/5th share in the plaint schedule property withthe following averments. The suit properties were purchased by the father of theplaintiff C.E.Reddi in the name of his wife, the first defendant. Theproperties were purchased by C.E.Reddi, out of the joint familyfunds. On his death, they were to be divided among the plaintiff andthe first defendant/ wife and the children shown as the otherdefendants. In view of the misunderstanding among the familymembers, an oral partition was effected in the year 1987. As per the https://hcservices.ecourts.gov.in/hcservices/ oral partition, the western portion of the Schedule Item-I along withgarage was allotted to the plaintiff, while the eastern part wasretained by the defendants 1 and 2. When such a division was orallymade, the western portion was allotted to the plaintiff, since hewas the eldest son and without the knowledge of the plaintiff, Item-II schedule was allotted to defendants 3 and 4 by the firstdefendant. While the matter stood thus, the first defendant filedC.S.No.719/2005 for delivery of vacant possession of the westernportion of the property at Item No.1 from the plaintiff and also forthe mesne profits from the plaintiff. Hence, there arose a necessityfor the plaintiff to file a suit for partition for 1/5th share initem Nos. 1 and 2 of the plaint schedule properties.

The first defendant/ mother made an application under OrderVII Rule 7 of C.P.C. and read with Order XIV Rule 8 of O.S.Rules forrejection of the plaint alleging that the said suit has been filed bythe plaintiff only as a counter-blast to C.S.No.719 of 2005. Theplaint items of properties are nothing to do with the joint family orestate of her husband. In the earlier suit in O.S.No.8620/1996 on thefile of the City Civil Court, the plaintiff putforth the case of oralpartition and a specific issue was framed whether the suit propertyItem No.1 was a joint family property. On trial, the issue wasdecided holding that it was not a joint family property but it wasself acquisition of the first defendant. When the suit filed by thefirst defendant was decreed, the plaintiff took it on appeal inA.S.No.324 of 2000 but the same was withdrawn by him. Thus, thejudgment in O.S.No.8620/1996 would operate as res judicata. Insofaras Item No.2 was concerned, the first defendant was the owner of thesaid property and she has settled the property to her two daughtersviz., defendants 3 and 4 by two separate registered settlement deedsdated 27.3.1986 and the defendants 3 and 4, pursuant to the same, have also taken possession and they have constructed their houseseven before 1990. The plaintiff who is also residing in the otherpart of the property where the first defendant was residing had nevermade a claim for partition of Item No.2 of the schedule. The presentsuit claiming partition of 1/5th share was brought forth only toharass the 85 years old first defendant. Under such circumstances, ithas to be rejected. The learned Single Judge after framing necessarypoints for consideration, ordered, rejection of the plaint.

Advancing the argument on behalf of the appellantMr.R.Sridharan learned counsel would submit that the rejection of theplaint by the learned Single Judge as if the suit was notmaintainable in view of the specific finding in O.S.No.8620/1996 wasnot correct since the said suit was for a mandatory injunctionbetween the parties. Even assuming the finding was given, the saidfinding was confined only to one item of property in C.S.No.129 of2007. It was contended by the plaintiff that in respect of theproperty there was no finding in that suit that it was the exclusiveproperty of the first defendant. In fact, it was never a subject https://hcservices.ecourts.gov.in/hcservices/ matter in O.S.No.8620 of 1996. Hence, the learned Single Judge shouldnot have rejected the plaint in view of the fact that in respect of Item No.2 it is still a contentious matter and theplaintiff/appellant was perfectly entitled to proceed with a suit, let in evidence and establish that he was entitled to 1/5th share inrespect of Item-2 of the suit property. Insofar as Item–2 of theproperty is concerned, there was no finding in any proceedings. Under such circumstances, the trial Court should have rejected thesuit.

It is true that the plaintiff has averred in the plaint that Item-I was subjected to oral partition already but it remains to bestated that the same was denied by the respondent. Under suchcircumstances, there arose necessity for filing the suit forpartition. It is not correct to state that the plaintiff has notputforth the plea that Item-2 was a joint family property liable forpartition while defending O.S.No.8620/1996 and the conclusion soarrived was illegal and uncalled for. In fact Item No.2 was never asubject matter of O.S.No.8620 of 1996. It was too earlier evenwithout letting in evidence, the learned Single Judge has acceptedthe case of the first defendant as the absolute owner when the saidissue could not have been a matter of dispute in the earlierproceedings in C.S.No.8620 of 1996. The learned Single Judge hasrelied on a partition deed dated 5.3.1962 marked as Exs.A7 and A8 inO.S.No.8620 of 1996. and pressed them into service in determining theapplication for rejection of the plaint. It was thoroughly erroneous. The appellant should have been given a chance to test the veracity ofthe partition deed since he was not a party in that suit. Whilerejecting the plaint under Order VII Rule 11 of the Civil ProcedureCode, the learned Single Judge has not exercised the discretionjudicially. The learned Single Judge has foreclosed the issuewhether Item No.1 of schedule property was a self acquired propertyof the first defendant without determining the same, on evidence andby accepting the contention putforth by the first defendant. Whilethe learned Single Judge was convinced that the plaintiff should begranted liberty to putforth his claim for partition in the suit filedby the first respondent, it should not have rejected the plaint andinstead should have proceeded with both the suits viz., C.S.No.129 of2007 and C.S.No.719 of 2005 and thus, the order of the learnedSingle Judge has got to be set aside.

The Court heard the learned counsel for the respondent whoputforth the submissions in his sincere attempt to sustain the orderof rejection of the plaint made by the learned Single Judge. TheCourt paid its anxious consideration on the submissions made.

The appellant as Plaintiff filed C.S.No.129 of 2007 seekingpartition of two items of properties mentioned in the schedulealleging that those immovable properties belonged to joint family. According to the appellant, they were purchased in the name of the https://hcservices.ecourts.gov.in/hcservices/ first defendant by his father C.E.Reddi from out of the joint familyfunds. On the death of C.E.Reddi, the plaintiff and defendants becameentitled to the properties. In view of the misunderstanding, therewas a oral partition in the year 1987 among the plaintiff anddefendants 1 and 2 and in that partition, western portion of scheduleItem No.1 along with the garage was allotted to the plaintiff, whilethe eastern portion was retained by the defendants 1 and 2. Insofaras second item of property was concerned even without the knowledgeof the plaintiff, the first defendant has settled those propertiesto her daughters viz., defendants 3 and 4. Even according to theplaintiff, there arose a necessity for filing the instant suit inlieu of the filing of another suit C.S.No.719 of 2005 at the instanceof the first defendant.

On the contrary, it was contended by thefirst defendant that both the properties were not joint familyproperties and it has nothing to do with the estate of C.E.Reddi. Those properties belong to the first defendant exclusively and thesaid suit has been filed as a counter blast to her suit in C.S.No.719of 2005. Even as per the averments in the plaint, it would be quiteclear that the first defendant/ mother has filed C.S.No.719 of 2005for damages and other reliefs against the plaintiff/appellant andthus, there arose a necessity for filing the present suit forpartition. Hence, this averment made in the plaint would prove thatthe instant suit was filed by the appellant as a counter-blast toC.S.No.791 of 2005 filed by the first defendant.

Concededly, a suit was filed by the defendant seekingpermanent and mandatory injunction in O.S.No.8620 of 1996 against theappellant/plaintiff and the subject matter of the suit was item No.1of the plaint schedule property. As averred in the present plaint, the appellant/plaintiff took a plea that the property belonged to thejoint family property. On a fullfledged trial, the Court held thatthe property was not a joint family property but self acquiredproperty of the first defendant. Even though the respondent took iton appeal in A.S.No.324/2000, he has withdrawn the same. It wascontended by the learned counsel for the appellant that the title inrespect of the property was never in issue in that suit, apart fromthat, the plea of the plaintiff that there was oral partition madewas candidly denied by the first respondent, under suchcircumstances, there arose a necessity for filing the present suitfor partition. This contention cannot be accepted even for a moment. The plea of oral partition was put forth by the appellant/plaintiffeven in O.S.No.8620 of 1996 apart from contending that was a jointfamily property. It would be more apt and appropriate to reproducethe finding recorded by the trial Court in O.S.No.8620 of 1996."I come to the conclusion that the plaintiff has provedher case that the suit property is her absoluteproperty and the Defendant is only a permissiveoccupier of the Western half portion of the Suitbuilding and also the Defendant has demolished the https://hcservices.ecourts.gov.in/hcservices/ disputed compound. "

While answering the issue whether the suit property was ajoint family property, on evidence, the issue was decided and heldas above. It would be too late for the appellant to raise the verysame contention that the property belongs to the joint family and onoral partition, he was given the western part. What is all requiredfor application of doctrine of res judicata as envisaged under Section 11 of the Civil Procedure Code is that when the matter was inissue directly and substantially in a prior litigation and decidedagainst a party, the decision would be res judicata in a subsequentproceeding. In AIR 2000 SC 1238 (Sajjadanashin Sayed Md.B.E.Edr. V.Musa Dadabhai Ummer), the Apex Court has held as follows: "The test to determine whether an issue wasdirectly and substantially in issue in earlierproceedings is collaterally or incidentally, is that ifthe issue was "necessary" to be decided foradjudicating on the principal issue and was decided, itwould have to be treated as "directly and substantiallyin issue " and if it is clear that the judgment was infact based upon that decision, then it would be resjudicata in a latter case. "

Applying the above decision of the Apex Court, it can bewell stated that the suit is hit by doctrine of resjudicata since the appellant has made an attempt to re-agitateon the same issue already decided. Apart from above, even as per theplaint averment there was oral partition which has taken place inthe year 1987 and the western portion was allotted to the plaintiff. Needless to say, an application for rejection of the plaint has tobe considered based on the averments in the plaint as theyare and no external aid could be looked into for the said purpose. Having averred that there was a oral partition in the year 1987 inwhich the plaintiff was allotted the western portion of item No.1,the plaintiff has come forward with the present suit for the divisionof the same property.

Equally the plaintiff has come forward with a vexatiousclaim in respect of Item No.2 calling it as a joint family property. As the absolute owner of the property, the first defendant hassettled the second item on defendants 3 and 4 in the year 1986. Itis pertinent to point out that the plaintiff was all along living onthe western portion of the property, while the 1st and 2nd defendantsare living on the eastern side of the property. The defendants 3 and4 accepting the settlement got into possession of the property in Item No.2 and after completing the construction have been livingthere. Though the plaintiff/appellant has raised that plea even inO.S.No.8620 of 1996 that the plaint item No.1 was a joint familyproperty, he has not whispered anything about the second item. Apart https://hcservices.ecourts.gov.in/hcservices/ from that, he has putforth a plea of oral partition, but he has notstated anything about item No.2. As rightly pointed out by thelearned Single Judge, the plaintiff/appellant was barred by law undersection 11 Explanation 4 which reads as follows: " Any matter which might and ought to have beenmade ground defence on attack in such former Suitshall be deemed to have been a matter directly andsubstantially in issue in such Suit. "

The Apex Court in Smt. Patasibal and others v. Ratanlal (JT1990(3) SC 68) has held as follows: "The trial Court should not proceed when there isno controversial issue but the trial Court failed toperform its duty and proceeded to issue summons withoutcarefully reading the plaint. Since the plaint suffersfrom that fatal defect, the mere issuance of summons bythe trial Court did not require that the trial shouldproceed even when no triable issue is shown to arise; permitting the continuance of such a suit is tantamountto licensing frivolous and vexatious litigation, whichcannot be done. "

It is also brought to the notice of the Court that the firstdefendant is aged more than 80 years whose suit in C.S.No.719 of 2005against the appellant is pending and the present suit is not only hitby the doctrine of res judicata but also found to have been filed incounterblast to the suit filed by the first respondent and theplaint would also reveal that it was an abuse of process of law, under such circumstances, the learned Single Judge is perfectlycorrect in making an order of rejection of the plaint. The Court isunable to see any reason to disturb the same.