The plaintiff in O.S.No.129 of 2014 on the file of VI Additional District Judge, Madurai is the appellant in this C.M.A. The appellant filed the said suit seeking the relief of partition and separate possession of her 4/9th share in the suit property. The original defendants were the mother and the brother of the plaintiff. The mother viz., the first defendant died during the pendency of the suit proceedings. But even when she was alive, a joint written statement was field by the defendants. The brother had taken a specific stand that all the suit items were allotted to the share of the father late Kamala Thiyagarajan under registered partition dated 30.03.1970. The said partition deed was entered into between father Kamala Thiyagarajan and the second defendant Vijaya Rajan. The validity and genuineness of the said document is are strongly contested by the learned counsel for the appellant.
2.The second defendant had taken a further stand that suit item No.1 which is the subject matter of the present I.A. was settled in favour of the second defendant on 08.06.2011 by way of registered settlement deed. This is also strongly questioned by the appellant. Admittedly both the documents were not marked during the enquiry in the present I.A. However, the learned trial Judge chose to dismiss I.A.No.352 of 2016 filed by the appellant herein by making reference to the said documents. I am of the view that this is clearly not correct. When the documents in question were not marked during the enquiry, the question of placing reliance or making reference to them will not arise. Therefore, all the findings made in the order dated 03.10.2016 dismissing I.A.No.352 of 2016 stand vacated.
3.The appellant herein states that even though she is residing at Chennai, she periodically visits Madurai and used to stay in one of the rooms which is comprised in item No.1. This right of her was not obstructed when the mother was alive. The mother passed away recently. Therefore, it has become necessary for the appellant to file the present I.A. so as to restrain the respondent from preventing her from residing in one of the rooms in item No.1 of the plaint schedule properties.
4.In view of the categorical stand taken by the second defendant to the effect that title has passed to his hands in view of the execution of a settlement deed by the late father in the 2011, I am of the view that this issue will have to be necessarily adjudicated and resolved in the main suit proceedings. The learned trial Judge is right in his observation that the plaintiff will not suffer any irreparable prejudice and the balance of convenience is not in her favour. She is admittedly a permanent resident of Chennai. Even according to her, she visits Madurai only periodically. Therefore, in the interest of justice, it is better that the matter is finally adjudicated. I therefore direct the learned trial Judge to dispose of the suit on or before 30.04.2018. It is made clear that all the findings that have been rendered in the impugned order to the prejudice of the plaintiff stand totally vacated. The learned trial Judge shall dispose of the suit in accordance with law without in any manner being influenced either by reasons set out in the order impugned in this appeal or even by the dismissal of the appeal itself.
5.This civil miscellaneous appeal stand dismissed with the aforesaid observation and direction. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The VI Additional District Judge, Madurai.
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai.
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