(Petitioners 21 to 23 brought on record as LR's of the deceased sixth petitioner vide Order of Court dated 25.10.2017 made in C.M.P.Nos.17951 to 17953 of 2017 in C.R.P.Nos.2582 and 2583 of 2008) Vs
1.Saraswathi
2.Kumar (Minor)
3.Niranjani (Minor)
4.Aruna (Minor) (2 to 4 Minors are represented by first respondent)
5.Gangammal
6.Visalakshmi Ammal
7.Krishnan
8.N.Vijaya Kumar
9.N.Shantha Kumar
10.Nagammal .. Respondents in both CRPs Prayer in CRP.No.2582 of 2008:- Civil Revision Petition is filed under Section 115 of CPC to set aside the Order and decree in I.A.No.23103 of 2006 in O.S.No.5176 of 1976 on the file of VIII Assistant City Civil Court, Chennai dated 05.03.2007.
Prayer in CRP.No.2583 of 2008:- Civil Revision Petition is filed under Section 115 of CPC to set aside the Order and decree in I.A.No.13459 of 2006 in I.A.No.18664 of 1981 in O.S.No.5176 of 1976 on the file of VIII Assistant City Civil Court, Chennai dated 04.12.2006.
For Petitioners : Mr.P.Seshadri For R1 : Mr.P.Veeraraghavan For R2 to 4 : Minors represented by R1 For R5 to 10 : Given up C O M M O N O R D E R These Civil Revision Petitions have been filed to set aside the Order and decree in I.A.No.23103 of 2006 in O.S.No.5176 of 1976 dated 05.03.2007 and to set aside the Order and decree in I.A.No.13459 of 2006 in I.A.No.18664 of 1981 in O.S.No.5176 of 1976 dated 04.12.2006 on the file of VIII Assistant City Civil Court, Chennai.
2. The issues and the parties involved in both the Civil Revision Petitions are one and the same. Therefore, disposed of by this common order.
3. The first petitioner is the plaintiff, respondents 1 to 4 are the defendants 8 to 11 in O.S.No.5176 of 1976 on the file of the VIII Assistant City Civil Court, Chennai. The first petitioner filed the said suit for partition of the suit property. In the suit property, she claimed share in 1 Acre 65 Cents. She also filed the O.S.No.7521 of 1977 on the file of District Munsif Court, Poonamallee, which was then transferred to the file of the VIII Assistant City Civil Court, Chennai. Joint trial was ordered. O.S.No.7521 of 1977, filed for declaration of property was dismissed, holding that the said property was purchased from and out of the joint family income. In O.S.No.5176 of 1976, a preliminary decree was passed, determining share of the deceased first petitioner/first plaintiff and the other defendants. A final decree application was filed and a compromise was entered into between the parties. The 'A' Schedule property was allotted to first petitioner/first plaintiff and defendants 2 to 7. The first petitioner filed the present two applications in I.A.No.13459 of 2006 to amend the Final Decree dated 23.04.2003 and I.A.No.23103 of 2006 to amend the plaint by amending item 1 of 'A' Schedule property as 1 Acre 65 Cents instead of 65 cents. According to the petitioner, by compromise in the Final Decree application, entire 'A' Schedule property was allotted to her and defendants 2 to 7. Therefore, she is entitled to entire extent of 1 Acre 65 Cents.
4. The respondents 1 to 4 filed a counter affidavit and opposed the said applications for amendment on the ground that the first petitioner claimed share only for 65 Cents in the first item of 'A' Schedule property and she did not claim for entire 1 Acre 65 Cents. The application filed after three years for amendment is not maintainable.
5. The learned Judge, considering the averments in the affidavit, counter affidavit and materials available on record, dismissed the application, I.A.No.13459 of 2006 on 04.12.2006, holding that without amending the original plaint, final decree cannot be amended and I.A.No.23103 of 2006 was dismissed on 05.03.2007, holding that first petitioner has not given any reason for amendment of the plaint and in view of the fact that already final decree is not passed.
6. Against the order of dismissal dated 05.03.2007 made in I.A.No.23103 of 2006 in O.S.No.5176 of 1976 and the order dated 04.12.2006 made in I.A.No.13459 of 2006 in I.A.No.18664 of 1981 in O.S.No.5176 of 1976, the present two civil revision petitions are filed by the petitioners.
7. Pending Civil Revision Petitions, the first petitioner died. The petitioners 2 to 20 and respondents 8 to 10 were impleaded as legal heirs of the deceased first petitioner vide Order of Court dated 05.03.2014 made in CRP.Nos.2582 and 2583 of 2008 and the petitioners 21 to 23 were brought on record as legal heirs of the deceased sixth petitioner, vide Order of Court dated 25.10.2017 made in C.M.P.Nos.17951 to 17953 of 2017 in C.R.P.Nos.2582 and 2583 of 2008.
8. The learned counsel appearing for the petitioners contended that the learned Judge erred in dismissing both the applications. The first petitioner filed two suits in O.S.No.5176 of 1976 for partition and O.S.No.7521 of 1977, claiming exclusive right over the 1 Acre of land which forms part of the claim no.1 in 'A' Schedule property. After joint trial, the O.S.No.7521 of 1977 was dismissed, holding that the said suit property is also a joint family property. In view of the said findings, the first petitioner is entitled to a share in 1 Acre 65 Cents as determined in the preliminary decree in O.S.No.5176 of 1976. In the final decree application, as per compromise, entire 'A' Schedule property was allotted to the first petitioner and defendants 2 to 7. The learned Judge failed to consider the 1 Acre of land mentioned in O.S.No.7521 of 1977, which was held to be the joint family property and prayed for allowing the Civil Revision Petitions.
9. Per contra, the learned counsel appearing for the respondents 1 to 4 submitted that the first petitioner claimed partition only in respect of 65 cents in the first item of 'A' Schedule property and she is not entitled to claim partition in respect of entire 1 Acre 65 cents and the application filed after three years for amendment is not maintainable. The learned counsel appearing for the respondents 1 to 4, in support of his contentions, relied on the Judgment reported in AIR 1984 Andhra Pradesh 352 (Emani Venkata Subba Rao -vs- Kanikicharla Nagabhushanam) and submitted that even if the final decree is erroneous, it cannot be amended. The only remedy open to the petitioners is only to file an appeal. She has slept over and now she cannot seek for amendment.
10. Heard the learned counsel appearing for the petitioners as well as the respondents 1 to 4 and perused the materials available on record.
11. The contention of the learned counsel for the respondents 1 to 4, that the first petitioner claimed partition only in respect of 65 cents and therefore she is not entitled to 1 Acre 65 cents is without merits, in view of the fact that the first petitioner filed suit in O.S.No.7521 of 1977, claiming exclusive right over the said 1 Acre. The said contentions of the first petitioner was rejected and the said property was also held to be the joint family property. In view of the finding in the Judgment in O.S.No.7521 of 1977 that the said 1 Acre also is a joint family property, the first petitioner is entitled to share in that 1 Acre also. In final decree, by consent the entire 'A' schedule property was allotted to the first petitioner and defendants 2 to 7. The learned Judge failed to consider the finding that 1 Acre in Item No.1 of 'A' Schedule property which is part of the item mentioned in the Item no.1 of 'A' Schedule property is joint family property and committed an irregularity in dismissing both the applications. In view of the finding that 1 Acre, which was claimed as exclusive property of the first petitioner was declared to be the joint family property as per the common Judgment in the final decree, the first petitioner and defendants 2 to 7 are entitled to 1 Acre 65 cents and the impugned order of the learned Judge liable to be set aside.
12. In view of the above facts, both the civil revision petitions are allowed. No costs.
06.11.2017 Index: Yes/No Speaking/Non Speaking Order rna To The VIII Assistant Judge, City Civil Court, Chennai.
V.M.VELUMANI,J rna C.R.P.(NPD)Nos.2582 and 2583 of 2008 06.11.2017