K.Ganesan v. Ranjeetham
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN K. GANESAN .. Petitioner Vs.
1. RANJEETHAM 2 MINOR R.BOOPATHY 3 MINOR R.PRIYA MINORS REP. BY MOTHER GUARDIAN SANTHI 4 R.SANTHI 5 M.KRISHNAVENI 6 M.DHARMALINGAM 7 K.RASAPPAN 8 G.KALAISELVI 9 RADHAMANI 10 R.CHANDRASEKAR 11 MUTHUMANICKAM 12 L.RAGUNATHAN 13 C.SARASWATHI 14 S.SANTHI 15 A.JAYARAJ 16 R.SENTHIL PERUMAL 17 K.MATHURAVALLI 18 P.RAMASAMY 19 R.RAJAMMAL 20 P.SUMATHI 1/9
21 S.GANESHKUMAR 22 S.J.RANI 23 P.SUBHULAKSHMI 24 S.R.JAYANTHI 25 K.DEVI 26 M.BHARATHI 27 A.AMSAVARDHNI 28 R.CHANDRASEKARAN 29 V.KUMAR 30 S.SAMBAJI 31 S.DEEPAKKUMAR 32 R.VENKATESH 33 R.MUTHU 34 K.DHANAM 35 R.BLAMURUGAN 36 J.PRATHAP 37 A.VIJAYAKUMAR 38 N.NITHIN NARAYANMALI 39 SANJAIKUMAR 40 G.SRINIVASAN 41 B.PRAKASH 42 G.SHYAMALA 43 V.R.MANI 44 P.BANUMATHI 45 S.MADHESWARAN 46 V.SENGODAN 47 S.ARUMUGAN 48 K.BALAKRISHNAN 49 K.RAMAKRISHNAN 50 P.RAMASAMY 2/9
51 R.RAJAMMAL 52 D.NATARAJAN 53 D.MURUGESAN 54 S.PACHIAPPAN 55 A.M..THANGAVEL 56 G.RAJESWARI 57 R.SARASWATHI 58 R.KALPANAVALLI .. Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, against the order and decreetal order dated 13.04.2018 in I.A.No.633 of 2017 in O.S.No.42 of 2011 on the file of the Principal Subordinate Judge, Salem.
For Petitioners : Mr. Bharath Gowtham for M/s.P.Veena Suresh For 1st Respondent : Mrs.Hema Sampath, Senior Counsel for M/s. R.Meenal
ORDER
This matter is taken up for hearing through Video-Conferencing. The seventh defendant in OS No.42 of 2011, aggrieved by an order dismissing his application for rejection of plaint filed under Order 7 Rule 11 3/9
of the Code of Civil Procedure on the ground that the suit is barred by limitation has come up with this Civil Revision Petition.
2. The suit in OS No.42 of 2011 was launched by the first respondent claiming partition and separate possession of her 1/5th share in the suit property. According to the plaintiff, the suit property belonged to Kuppanna Goundar @ Kuppa Goundar as his self-acquisition. The said Kuppanna Goundar @ Kuppa Goundar died about 20 years prior to the suit. Claiming that the defendants, who are the sons of Kuppanna Goundar @ Kuppa Goundar and heirs of the sons had refused to partition the property, the plaintiff has come up with the suit.
3. The purchasers of portions of the property from the sons were also impleaded as parties to the suit. Pending suit, the seventh defendant filed an application seeking rejection of plaint on the ground that the suit is barred by limitation, since Kuppanna Goundar had died even in the year 1983 and his sons have entered into a partition amongst themselves on 14.11.1995 to 4/9
the knowledge of the plaintiff. The plaintiff had chosen to launch the suit nearly after two decades of the death of Kuppanna Goundar and therefore, according to him, the suit is barred by limitation.
4. The Trial Court upon a consideration of the law relating to the limitation in respect of Partition Suits as well as ouster of one co-owner by the other concluded that those pleas cannot afford a ground for rejection of the plaint under Order 7 Rule 11 of the Code of the Civil Procedure. On the said finding, the Trial Court dismissed the Application.
5. I have heard Mr.Bharath Gowtham, learned counsel appearing for Ms.P.Veena Suresh for the petitioner and Mrs.Hema Sampath, learned Senior Counsel appearing for M/s.R.Meenal for the first respondent.
6. Mr.Bharath Gowtham, learned counsel appearing for the petitioner would contend that the Trial Court was not right in dismissing the Application. He would submit that the fact that Kuppanna Goundar, died in 1983 and coupled with the fact that the plaintiff was married even during 5/9
the lifetime of Kuppanna Goundar, would show that the plaintiff was never an enjoyment of the suit properties for over 23 years prior to the suit. He would also point out that the sons of Kuppanna Goundar, had entered into a Partition Deed even on 14.11.1995 treating the properties as their exclusive properties. After the said partition various portions of property have been developed into lay out and sold to several people. All these transactions were within the knowledge of the plaintiff. Therefore, the plaintiff has been ousted by the defendants and hence she has no right to maintain the suit for partition.
7. Contending contra, Mrs.Hema Sampath, learned Senior Counsel appearing for the respondent would point out that the plea of ouster is a mixed question of law and facts. A co-owner pleading ouster must plead and proves not only exclusive possession, but also show that they have done something which would effectively be in denial of the title of the plaintiff. This has to be established only at the time of trial. A mixed question of fact and law cannot form a ground for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. I have considered the rival submissions. 6/9
8. The suit is one for partition. The relationship is not denied. The title of Kuppanna Goundar is also not denied. Therefore, the plaintiff in the normal circumstances, will be entitled to the share in the property as a heir of Kuppanna Goundar . The defendants are now seeking to deny her share on the ground of ouster.
9. As rightly pointed out by the learned Senior Counsel appearing for the respondent in order to prove ouster mere long and exclusive possession is not sufficient. The person pleading ouster must go one step further and prove that the possession was in denial of the title of the other co-owner/s to the knowledge and prejudice of the other co-owner/s. These facts can be proved only by letting in evidence. The same cannot be a ground for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure.
10. I find that the Trial Court had applied the law relating to rejection of plaint in the right perspective and dismissed the application. I do not see any material irregularity or illegality in the order of the Trial Court, in order 7/9
to enable interference under Article 227 of the Constitution of India. Hence, the Civil Revision Petition fails and it is accordingly dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 31.07.2020 jv Index: Yes/No Internet: Yes/No Speaking order/ Non speaking order To The Principal Subordinate Judge, Salem.
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R.SUBRAMANIAN , J.
jv 31.07.2020 9/9