S.A.(MD)No.376 of 2018 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.07.2025 CORAM THE HON'BLE MR.JUSTICE G.ARUL MURUGAN S.A.(MD)No.376 of 2018 and C.M.P.(MD)No.10423 of 2018 Sitharthan(died) ... Appellant/Appellant/ 4th Defendant 2.Manickavasagam 3.S.Ganesan 4.S.Shunmugavel ... Appellants 2 to 4 (Appellants 2 to 4 are brought on record as LRs of the deceased sole appellant vide Court order dated 23.01.2024 made in C.M.P.(MD)Nos.16177, 16179 and 16180 of 2023) vs 1.Pitchammal 2.Veerabagu 3.Subbulakshmi 4.Saravanan @ Sankara Ramakrishnan 5.Bhuvaneswari 6.Sivagnanam 7.Thangaperumal(died) 8.Saraswathi 9.K.Ponmani Beulah 10.Jeyasingh Thiyagaraja Nattarji 1/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 11.Emila Amalrani 12.Sivanpillai Ammal 13.Muthu Alageswari 14.Sudalaimuthu 15.Ganeshkumar 16.Sivakumar ...Respondents/Respondents/ Plaintiffs 17.A.Geetha 18.Kasi Rajan ... Respondents (Respondents 17 and 18 are brought on record as LRs of the deceased 7th respondent vide Court order dated 05.03.2025 made in C.M.P.(MD)Nos. 2679, 2681 and 2682 of 2025) PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 30.08.2017 passed in A.S.No.200 of 2011, before the Sub Court, Thoothukudi, confirming the judgment and decree dated 22.08.2011, passed in O.S.No.166 of 2005, before the Additional District Munsif Court, Thoothukudi. For Appellants : Mr.G.Prabhu Rajadurai For Respondents : Mr.S.A.Ganapathy Raman for R.1 to R.6 and R.8 : Mr.R.Gowrishankar for R.15 and R.16 : Mr.K.Jeya Mohan for R.17 and R.18 : No Appearance for R.9, R.12 to R.14 : Mr.M.Sengu Vijay for R.10 and R.11 ( No Instructions Memo filed) 2/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 JUDGMENT The fourth defendant had preferred the above Second Appeal. Pending appeal, the sole appellant died and his legal heirs have been impleaded as the appellants 2 to 4. 2. The Second Appeal is filed challenging the judgment and decree, dated 30.08.2017 in A.S.No.200 of 2011, on the file of the Additional Subordinate Court, Thoothukudi, confirming the judgment and decree, dated 22.08.2011, on the file of the Additional District Munsif, Thoothukudi. 3. For the sake of convenience, the parties are referred to as per the litigative status before the trial Court. 4. According to the plaintiffs, the first item of the suit property belonged to the first defendant, who got the property through auction conducted on 25.09.1985 in the District Munsif Court, Thoothukudi. The possession of the suit first item was handed over to the first defendant on 3/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 11.06.1986. Thereafter the first defendant had converted the first item of suit property into housing lay out and had executed sale deeds in favour of the plaintiffs on various dates. In view of the purchase made, the plaintiffs are the absolute owners. Since the defendants 2 to 6 interfered with the possession of the first defendant, he had filed a suit in O.S.No.263 of 1989, on the file of the District Munsif Court, Thoothukudi and the same was dismissed on 29.03.1994. The trial Court held that the first defendant can only seek for a partition. An appeal preferred in A.S.No.288 of 1994 also came to be dismissed on 10.10.1995. Since the first item of the suit property had now been purchased by the plaintiffs, the plaintiffs had come with the suit seeking for partition. 5. The defendants 2 to 6 are the persons holding the balance extent of the property in Survey No.776 and therefore they are the joint owners. 6. The fourth defendant had filed a written statement disputing that the first defendant had purchased the first item of the suit property in Court auction. The fourth defendant had also disputed the purchase of the plaintiffs. According to the fourth defendant, the first defendant had never 4/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 converted the land into lay out and the original owner of the land viz., Bathimuthu Beevi had sold 9 Acres and 72.5 cents, out of the total extent of 15.32 Acres in Survey No.775 and an extent of 92 cents in Survey No.776 and had converted into plots as early as in the year 1979. From the lay out, the fourth defendant had purchased the plots on 24.09.1986. Therefore, based on the purchase, the fourth defendant is in possession and enjoyment of the property. The suit filed for partition is bad for non-joinder of parties. 7. During trial, the seventh plaintiff was examined as P.W.1, the ninth plaintiff as P.W.2 and the husband of the eighth plaintiff as P.W.3 and marked Exs.A.1 to A.17. On the side of the defendants, the fourth defendant examined himself as D.W.1 and the second defendant was examined as D.W.2 and marked Exs.B.1 to B.22. An Advocate Commissioner was appointed and the report filed by him along with the plan have been marked as Exs.C.1 to C.3. 8. The trial Court, after analying the evidences, came to the conclusion that when the first defendant is having title in respect of undivided 54 cents out of 92 cents in Survey No.776, he had converted the 5/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 same into lay out and had executed sale deeds in favour of the plaintiffs conveying the lands totally measuring 54 cents and the defendants had purchased totally 30 cents from the other owners. When the total extent of 92 cents were available in Survey No.776 and admittedly, when the plaintiffs have documents in respect of 54 cents, the defendant had been conveyed with 30 cents, still there is a small balance extent available and therefore, even after alloting 54 cents to the plaintiffs as per the documents, the defendants who are having 30 cents in the same survey number would also be allotted lands in the same survey number according to the sale deeds purchased by the parties. As such, the trial Court had decreed the suit passing preliminary decree in favour of the plaintiffs granting their share of land purchased by them through their respective sale deeds from the first item of the suit property. Two separate first appeals were filed, one by the fourth defendant in A.S.No.200 of 2011 and another filed by the defendants 5 and 6 in A.S.No.7 of 2012. The lower appellate Court on coming to the conclusion that since even after the plaintiffs being accommodated as per the preliminary decree, the interest of the defendants has also been taken care of and they can also be accommodated in the same survey number, by a common judgment, dismissed both the appeal. Assailing the judgment and 6/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 decree of the lower appellate Court, the fourth defendant alone had preferred the above Second Appeal. 9. The Appeal has not been admitted and by order dated 16.11.2018, only notice has been issued to the respondents. 10. Heard Mr.G.Prabhu Rajadurai, learned Counsel for the appellants and the respective learned Counsel appearing for the respondents and perused the materials available on record. 11. A memo has been filed by the learned Counsel for the respondents 10 and 11 reporting no instructions. 12. Admittedly, there is a total extent of 92 cents of land available in Survey Number 776. As per the document in Ex.A.1, dated 27.11.1985, a sale certificate has been issued in favour of the first defendant, wherein an extent of undivided 54 cents of land, out of total extent of 92 cents in Survey Number 776 has been conveyed. Out of this property purchased by the first defendant through Court auction, the first defendant has formed a 7/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 lay out and out of the same, sale deeds have been executed in favour of the plaintiffs conveying plots with specific plot numbers and boundaries. The sale deeds executed by the first defendant in favour of the plaintiffs are filed in Exs.A.9 to A.13 and A.15 to A.17. Since the total extent conveyed in favour of the plaintiffs is only an extent of 54 cents out of total extent in 92 cents in Survey Number 776, the plaintiffs have come up with the suit for partition. 13. It is the case of the fourth defendant/appellant that originally an extent of 14.40 Acres in Survey No.775 and 92 cents in Survey No.776 belonged to one Bathimuthu Beevi and she had formed a lay out and out of which, the lay out has been formed in a portion of the lands and the defendants have purchased plots from Bathimuthu Beevi. As such, it is the case of the fourth defendant that they claimed title over the purchase made through Bathimuthu Beevi. However, it could be seen that the lands conveyed in favour of the defendants also fall within the lands that are available in Survey No.776. In effect, the defendants are the owners of the other extent of lands that is available in Survey No.776, leaving out the portion of the properties purchased by the plaintiffs measuring an extent of 8/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 54 cents. Since admittedly, the defendants have purchased and they are the owners in respect of the balance lands in Survey No.776, they have been made as parties to the suit and the plaintiffs have come with the suit for partition. 14. It is admitted by both sides that when the plaintiffs have purchased 54 cents from the first defendant, the first defendant being the owner from the sale certificate executed in his favour in Ex.A1, the defendants have purchased 30 cents from the other owner Bathimuthu Beevi. The trial Court on analysing the documents had found that since the plaintiffs had been conveyed only with an extent of 54 cents and even after adjusting the properties purchased by the plaintiffs, as per their sale deeds, still an extent of 38 cents is available in Survey No.776, whereas the defendants had only purchased an extent of 30 cents in Survey No.776, therefore, there could not be any problem in accommodating the defendants also in the same Survey No.776. The trial Court while decreeing the suit granting a preliminary decree had come to the conclusion that the properties as per the sale deeds purchased by the respective parties could be allotted from out of the first item of the suit property in Survey No.776. 9/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 15. Paragraph No.13 of the trial Court decision reads as follows: “vdBt, nUjug;gpdh;fshYk; rh;Bt vz;.776-y; cs;s 92 brz;l;y; gphptpd;wp 1k; gpujpthjpf;F 54 brz;l; ghj;jpag;gl;ljhft[k;, me;j brhj;Jf;fis thjpfs; jdpj;jdpBa gpshl;Lfshf fpuak; bgw;Ws;sjhft[k;, gpujpthjpfSk; Bkw;fz;l rh;Bt vz;.776-y; cs;s 92 brz;l;-y; gphptpd;wp gpshl;Lfshf Bghlg;gl;ljpy; fpuak; bgw;Ws;sjhft[k; jhf;fy; bra;ag;gl;l MtzA;fspd; %yk; ne;ePjpkd;wj;jpw;F bjhpa tUfpd;wJ. ePjpkd;w MizauJ mwpf;ifapYk; rh;Bt vz;.776-y; 92 brz;l; tp!;jPuzKs;s nlk; nUg;gjhft[k;, gpujpthjpfs; fpuak; bgw;w ghfk; Bghf kPjKs;s 54 brz;l;il gphpj;J bfhLf;f Ml;Brgiz ny;iy vd;W rhl;rpak; mspj;Js;sjhft[k; ne;ePjpkd;wk; fUj;jpy; bfhz;L, nUjug;gpdh;fSk; jhA;fs; fpuak; bgw;w MtzA;fspd; go, ghfk; fpilf;f Btz;Lbkd;gij nWjpepiy jPh;g;ghizapd; %yk; Kot[ bra;J bfhs;sg;gl Btz;oabjd;W thjpfspd; jug;gpy; brhy;yg;gl;l thJiu Vw;g[ilaBj vd;W ne;ePjpkd;wk; fUJfpwJ. vdBt, nUjug;gpdh;fSk; Bkw;fz;l rh;Bt vz;.776-y; mtuth;fs; fpuak; bgw;w tp!;jPuzj;jpd; go ghfk; bgw;Wf;bfhs;s jFjpa[ilath;fBs vd;W ne;ePjpkd;wk; fUjp ne;jg; gpur;ridf;F jPh;t[ fhzg;gLfpd;wJ.” 10/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 16. When the judgment and decree of the trial Court in granting a preliminary decree was in the best interest of all the parties concerned, in fact there was no occasion for the defendants to prefer an appeal, however it is seen that the appeal has been filed and came to be dismissed and now the Second Appeal has been filed, which is pending for a long time. 17. The learned Counsel appearing on either side submits that since in view of the decree of the trial Court as confirmed by the first appellate Court, a preliminary decree has been passed by allotting share to the plaintiffs in accordance to the lands purchased by them in 54 cents in Survey No.776 and the defendants had also purchased only 30 cents in Survey Number 776, the parties will approach the trial Court for the final decree proceedings, where the interest of all the parties could be taken note of and protected. 18. Considering the fact that both parties are not losing out any of the extent purchased by them and since the extent of 92 cents is available in Survey No.776 and in view of the decree passed by the trial Court as 11/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 extracted above, it is for the parties to participate in the final decree proceedings, where the portion purchased by them would to be identified and final decree could be passed by protecting the best interest of all the parties concerned. 19. In view of the above deliberations, this Court does not find any illegality or perversity in the findings rendered by the Courts below. No question of law, much less a substantial question of law arises for consideration in the Second Appeal. 20. Since the preliminary decree has been passed as early as on 22.08.2011 and the appeal being dismissed, the trial Court shall take up the final decree proceedings without waiting for any formal application, in view of the decision of the Hon'ble Supreme Court in Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan reported in 2022(16) SCC 71 and endeavour to pass a final decree as expeditiously as possible. 21. With the above observations, the above Second Appeal stands dismissed. However, there is no order as to costs. Consequently, the 12/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 connected Civil Miscellaneous Petition is closed. 15.07.2025 Internet :Yes/No Index :Yes/No NCC :Yes/No SSL To 1. The Subordinate Court, Thoothukudi, 2. The Additional District Munsif Court, Thoothukudi. 3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. 13/14 https://www.mhc.tn.gov.in/judis S.A.(MD)No.376 of 2018 G.ARUL MURUGAN, J. SSL Judgment made in S.A.(MD)No.376 of 2018 15.07.2025 14/14 https://www.mhc.tn.gov.in/judis