This second appeal has been filed by the plaintiffs, animadverting upon the judgement and decree dated 2.7.2008 passed by the learned Principal Subordinate Judge, Erode, in A.S.No.115 of 2007, confirming the judgement and decree dated 23.4.2007 passed by the learned District Munsif cum Judicial Magistrate, Perundurai, in O.S.No.475 of 2004. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
(a) The appellants/plaintiffs filed the suit O.S.No.475 of 2004, as against as many as 9 defendants, seeking for partition on the main ground that 1/3rd undivided share was purchased by the plaintiffs' grand father Pongianna Gounder, vide Ex.B1-the sale deed dated 23.3.1938.
(b) Defendants 1 to 3 entered appearance and resisted the suit on the ground that they purchased the 1/3rd undivided share in the properties as per Ex.B2-the sale deed, dated 7.2.1955 and after such purchase, there was inter se partition among the purchasers, which took place even in the year 1955 and from that time onwards, they got effected mutation in the Revenue records and they have been enjoying the same. Defendants 4 and 9 supported the claim of the plaintiffs.
(c) During enquiry, the trial Court framed the relevant issues. The first plaintiff examined himself as P.W.1 along with one Subramaniam as P.W.2 and Exs.A1 to A.4 were marked. The first defendant examined himself as D.W.1 along with two others and Exs.B1 to B18 were marked. Exs.C1 to C4 were marked as Court documents.
(d) Both the Courts below gave a categorical finding to the effect that the suit was bad for non-joinder of necessary parties and adequate pleadings were not available in the plaint itself; absolutely there is no reason or basis found exemplified as to how 17 shares emerge as per the plaintiffs and accordingly dismissed the suit.
(e) Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal is focussed by the plaintiffs on various grounds and also raising the following substantial questions of law:
3. Heard the learned counsel for the appellants/plaintiffs as well as the learned counsel appearing for the respondents/defendants.
4. The learned counsel for the plaintiffs would advance his argument to the effect that even though there might be some deficiency in the pleadings, yet, as per the well settled proposition of law, the plaint and written statement could be read together and if it is found that the parties proceeded with the trial understanding the real issues, the suit need not be dismissed as one not backed up by proper pleadings; a mere utterance of oral partition on the side of the defendants 1 to 3 in no way would control or limit the right of the plaintiffs to seek for partition and accordingly, he would pray for reversal of the judgements of both the Courts below and for decreeing the suit.
5. At this juncture I would like to point out that the onus of proof as well as the onus probandi is on the plaintiffs to prove their case. Here, I call up and recollect the definition of onus pobandi, as found in Black's dictionary, as under:
"Onus Probandi: The burden of proof. The strict meaning of the term 'onus probandi' is that, if no evidence is adduced by the party on whom the burden is cast, the issue must be found against him."
6. Here, in this case, the plaintiffs were expected to adduce adequate evidence. Adhering to the principle of onus probandi alone both the Courts below dismissed the claim of the plaintiffs. A detailed analysis of the available records would display and demonstrate that on the one side, the plaintiffs placing reliance on Ex.B1-the sale deed dated 23.3.1938 would claim that they purchased 1/3rd undivided share in certain properties, whereas, the defendants 1 to 3 would contend that they purchased 1/3rd undivided share in certain properties. The core question arises as to what happened to the remaining 1/3rd share and who are all entitled to that 1/3rd share. There is precisely nothing to exemplify what is that whole undivided property at all.
7. In Ex.B1-the sale deed dated 23.3.1938, the recitals would evince that Ganapathy Iyer executed the sale deed in favour of Pongianna Gounder and that the vendor would claim as though he got it as per a sale deed, without specifying the details about the sale deed and from whom he acquired that right. As such, this could remain totally unclarified and unexpounded on the plaintiffs' side.
8. Similarly in Ex.B2-the sale deed dated 7.2.1955, executed by one Rawtha Gounder, son of Elaya Gounder, in favour of the propositus of D1 to D3, namely, (i) Ravutha Gounder, (2) Chinnasamy Gounder and (3) minor Rangasamy, transferring 1/3rd undivided share in certain properties, the vendor under Ex.B2 would make no reference to the fact as to how he got the property. The same comments as advanced as against Ex.B1 is also applicable to Ex.B2.
9. To the risk of repetition, without being tautologous, I would like to point out that the alleged remaining 1/3rd undivided share is not found established before both the Courts below and there is no whisper about it in the pleadings also and it is not readily known as to who are all the others interested in the remaining 1/3rd share.
10. It is a trite proposition of law that there cannot be any piecemeal partition and in a partition suit, all necessary parties should be added and only in their presence comprehensively a partition suit could be decided. As such, both the Courts below were right in dismissing the suit with the aforesaid finding that the suit was bad for non-joinder of necessary parties and also bad for adequate pleadings in support of the plaintiffs' prayer.
11. The learned counsel for the defendants 1 to 3 would advance his arguments correctly and convincingly that if at all the plaintiffs had any grievance that their 1/3rd undivided share, as per Ex.B1, should be carved out from the larger undivided share, then they should not have waited for five decades to file the suit, which would bespeak volumes about the fact that already the parties concerned got satisfied with their respective possession and furthermore, it also strengthens the plea of the defendants 1 to 3 that there were inter se partition among the defendants and their relatives. According to the learned counsel for the defendants, no interference with the findings of both the Courts below is warranted.
12. At this juncture my mind is reminiscent and redolent of the following decisions of the Hon'ble Apex Court.
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL,certain excerpts from its would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ."
18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . . "
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL.
A plain reading of those precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved. Here as held supra, there is no substantial question of law is found exemplified. purely based on the factual analysis, both the Courts below rendered their judgements. Hence, I could see no merit in the second appeal.
13. However, the learned counsel for the plaintiffs would make an extempore submission that in matters where the suit suffers from non-joinder of necessary parties, the same should be remitted back to the trial Court, so as to give an opportunity to the plaintiffs to add parties and prosecute the matter further.
14. Whereas the learned counsel for the defendants would appropriately and correctly point out that this is not a case where one or two parties left out unwittingly. But here the very nature and vendor of the plaint itself would bespeak that the plaintiffs themselves are not aware of the owners of the remaining 1/3rd undivided share and in such a case, if the matter is remitted back, it would not serve the purpose.
15. At this juncture, I recollect the following decision of this Court.
(i) AIR 1999 Madras 71 Sabasthi Nadar vs. Savurimuthu Nadar and another, certain excerpts from it would run thus:
"11. The learned counsel for the respondent would further contend that at any rate, in a suit petition, impleading of parties can be done at any stage before passing of the final decree. The following are the decisions which were relied upon by the learned counsel in support of his point: (1) Swayamprakasam Chidambaranathan v. R.vijayarangam, 1970 (1) MLJ 243, (2) R.A.Narasinga Rao v. Chunduru Sarada, A.I.R. 1976 A.P.996, (3) N.P.R.Nair v. A.Pillai Kumar Pillai, A.I.R. 1978 Ker.152.
12. I am unable to agree that these decisions could be pressed into service to contend that the findings as well as the decree granted by the courts below have to be sustained and that the unimpleaded parties can be ordered to be impleaded, so that they can take part in the final decree proceedings. It has to be borne in mind that in the very decision of the Kerala High Court relied upon by the learned counsel reported in, N.R.Nair v. A.Pillai, A.I.R. 1978 Ker.152 it is specifically emphasised that the impleadment of parties after the passing of the preliminary decree is possible only on the basis that none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment and that the impleadment could be only on the condition that further proceedings will be only on the basis of the preliminary decree already passed. This decision would only make it obvious that it will be an injustice to the unimpleaded parties, if the court does not dismiss the suit for non-joinder of parties. This is what was emphasized in the, A.Ramachandra Pillai v. Valliamal, 100 LW 486, cited earlier. If co-sharer who is entitled to raise his pleas on the merits of the suit is to be deprived of his defence for no fault of himself and if the plaintiff could be put on premium for not having impleaded a necessary party, it would spell clear injustice, and it would only lead to multiplicity of proceedings.
13. On the other hand the decision of the learned Single Judge of this court reported in Swayamprakasam Chidambaranathan v. R.Vijayarangam, 1970 (1) MLJ 243 is more practical as it holds that Order 1 Rule 10(2) of the Civil Procedure code gives power to the Court to implead parties at any stage of the proceedings in a partition suit. The proceedings do not come to an end till the passing of the final decree and therefore at the stage of final decree proceedings also, parties can be impleaded. Similarly the judgment of the Division Bench of the High Court of Andhra Pradesh reported in Ramader Appala Narasingha Rao v. Chundrur Sarada, A.I.R.1976 A.P.226, it is also to the effect that a party who was impleaded only after passing of the final decree, can seek for setting aside the preliminary decree to do substantial justice between the parties having regard to the circumstances of the case.
14. The position which emerge as a result of the above analysis, in the context of the present case is that the plaintiff having deliberately suppressed the existence of certain other sharers and not having impleaded them as party and the Genealogy having been proved to be in correct, the suit deserves to be dismissed. Even at present no steps were taken by the plaintiff to implead all the necessary parties who have been left out and the court cannot take any initiative on its own under Order 1 Rule 10(2) of the Code of Civil Procedure in the absence of proper particulars relating to all parties who are left out. But instead of dismissing the suit in its entirety, in the interest of justice, indulgence may be shown to the plaintiff by remanding the suit to the Trial court, giving opportunity to the plaintiffs to implead all the members of the family who are necessary parties to proceed further in accordance with law by giving opportunity to all parties to adduce further evidence if any to the court and to decide their claims on the merits afresh."
(ii) AIR 2003 Himachal Pradesh 32 [Asha Sharma and others v. Amar Nath and others]
16. A bare perusal of the above decisions would evince and convey that fresh proceedings are not bared in view of the earlier proceedings having dismissed for want of adding all necessary parties.
17. The learned counsel for the defendants 1 to 3 would submit that this Court may not make any observation about the plaintiffs' right to file fresh suit as it would pave the way for perpetual litigagtion and the defendants would be in turmoil and confusion.
18. I would like to point out that it is for the plaintiffs to work out their remedy in the way known to law and in the event of the plaintiffs initiating any proceeding, it is for the defendants to take and pit all pleas known to law as against it.
19. In the result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
msk To
1.The Principal Subordinate Judge, Erode
2.The District Munsif cum Judicial Magistrate, Perundurai