D.Dinesh Babu v. P.N.Srinivasan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.03.2018

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI S.A.No.2074 of 2001 D.Dinesh Babu ... Appellant Vs.

1.P.N.Srinivasan 2.Alamelu 3.Thirupurasundari 4.Maheswari 5.Hemvathy 6.Venkatesan 7.Vaithilingam 8.Thillai Govindan 9.Thillai Narayanan 10.Sahadevan 11.Kuppusamy 12.Pasupathy 13.Ganesan 14.Gowri 15.Rohini 16.Jayarama Padayachi 17.Anandayee 18.Valaru 19.Moorthy alias Theru 20.Rani Ammal 21.Narayanaswamy 22.Kuppusamy Naidu 23.Ramadoss 24.Seenu 25.Girija 26.Anusuya 27.Ranganathan 28.Gopal Padayachi 29.Gowri Ammal 30.Govindan 31.Ramalingam 32.Ramanujam Naidu 33.Lakshmipathy 34.Damodaran 35.Kasthuri 36.Saroja 37.Navaneetham Ammal 38.Ramu 39.Sarangan

40.Jayarama Naidu 41.Kannan 42.Ramakrishna Naidu 43.Balakrishnan 44.Ramasamy 45.Nataraja Chettiar 46.Rangasamy Naidu 47.Jagadhambal 48.Dhakshinamoorthy Pandithar 49.Vijayalakshmi ... Respondents Prayer:

Second Appeal filed under Section 100 of C.P.C. against the judgment and decree of the learned Principal District Judge, Cuddalore and made in A.S.No.122 of 1998 dated 31.07.2000 confirming the judgment and decree of the learned Additional District Munsif, Cuddalore and made in O.S.No.389 of 1996 dated 15.10.1998.

For Appellant : Mr.N.Anand Venkatesh For Respondents: R1, R6, R7, R9 to R16, R18 to R20, R22 to R26, R31 to R34, R38 to R43, R48 and R49 - Dismissed vide Court order dated 08.12.2009.

R17, R21, R28, R37, R46 and R47 - Died.

R2 to R5, R8, R27, R29, R30, R35 and R45 - No Appearance.

J U D G M E N T

The plaintiff who lost his case before both the Courts below is the appellant herein. The defendants 1 to 49 are the respondents 1 to 49 herein.

2.Originally the suit schedule properties belonged to one Vaithilinga Naidu. He settled his properties in favour of his only daughter namely, Govindammal and her three sons namely, Rajagopal, Dhandapani and Srinivasan. The said Srinivasan is the first defendant. Plaintiff is the son of the said Dhandapani and Alamelu/ second defendant. Defendants 3 to 5 are the sisters of the plaintiff/ daughters of the second defendant. Defendants 6 to 10 are the sons of the first defendant. Defendants 11 to 49 are the subsequent purchasers who purchased the property from the first defendant.

3.The appellant/ plaintiff filed the suit for partition against the defendants. The lower Court held that when the first defendant is alive, the plaintiff has no right to seek partition against the first defendant who is the brother of the

plaintiff's father. Accordingly, the suit was dismissed by the lower Court. Aggrieved by the same, the plaintiff preferred appeal before the lower Appellate Court and the lower Appellate Court confirmed the findings of the lower Court and dismissed the appeal. Hence, the appellant has come forward with this second appeal.

4.It is represented by the learned counsel appearing for the appellant that during the pendancy of the second appeal, the first respondent/ first defendant passed away on 27.09.2016. In view of the above, nothing survives for adjudication in the second appeal and based on the fresh cause of action, the plaintiff is entitled to file a fresh suit before the lower Court. Accordingly, the learned counsel made an endorsement to that effect in the bundle.

5.In view of the above, the second appeal is dismissed as infructuous. No costs.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar To 1.The Principal District Judge, Cuddalore.

2.The Additional District Munsif, Cuddalore.

3.The Section Officer, V.R.Section, High Court of Madras, Chennai 600 104.

+1cc to M/s.N.Anand Venkatesh, Advocate Sr.No.16665 PPA(CO) sm:26.3.2018 S.A.No.2074 of 2001