P. Sadayammal vs V. Palanisamy and Others

K.K. Sasidharan, J—The petitioner filed a suit in O.S. No. 75 of 2006 for partition and separate possession of her half share. The suit was filed on the basis of a partition deed dated 19 June, 1996. The Trial Court found that the suit property has nothing to do with the partition deed dated 19 June, 1996. The suit was, accordingly, dismissed.

The petitioner filed first appeal in A.S. No. 74 of 2008 before the learned Additional Subordinate Judge, Karur. During the currency of appeal, the petitioner filed I.A. No. 415 of 2010 to withdraw the suit invoking Order 23 Rule 1 of Code of Civil Procedure. The application was dismissed by the Appellate Court. The order dated 20 April, 2011, in I.A. No. 415 of 2010 is the subject matter of the present Civil Revision Petition.

Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the second respondent.

The petitioner laid the suit against the respondents for partition and separate possession of her half share. The petitioner, in her plaint in O.S. No. 75 of 2006, contended that the property belongs to her father on the strength of registered partition deed dated 19 June, 1996. The Trial Court found that the document dated 19 June, 1996, has nothing to do with the suit property. The petitioner was non-suited only on the ground that the subject matter of the partition deed dated 19 June, 1996, has absolutely no connection with her father or the property shown in the schedule to the suit in O.S. No. 75 of 2006.

The petitioner, in her affidavit filed in support of the application in I.A. No. 415 of 2010, indicated the details regarding devolution of property. According to the petitioner, the document dated 19 June, 1996, was wrongly referred to in the suit, notwithstanding the fact that it has nothing to do with the suit property. The first respondent, in his written statement in O.S. No. 75 of 2006, claimed only adverse possession against the petitioner.

The suit filed by the petitioner was not dismissed on the ground that she is not having any right in respect of the property left by her father or by accepting the plea taken by the first respondent regarding adverse possession. The suit was dismissed only on the ground that the partition deed dated 19 June, 1996, has nothing to do with the property shown in the schedule to the suit in O.S. No. 75 of 2006.

The application in I.A. No. 415 of 2010 was filed by invoking Order 23 Rule 1 of Code of Civil Procedure. The petitioner has very clearly demonstrated that her suit was dismissed on account of a formal defect and that there are sufficient grounds for allowing her to withdraw the suit. The formal defect in the subject matter relates to the claim made on the strength of a document, which has nothing to do with the suit property. The Trial Court has not given a finding that the petitioner is not entitled to claim partition in respect of the suit property left by her father. The Trial Court has given a simple finding that the suit property has nothing to do with the property mentioned in the partition deed dated 19 June, 1996.

The petitioner has taken up a contention that she is entitled to a share in the property left by her father. The first respondent, who is none other than the brother of the petitioner, in his written statement, while claiming adverse possession against the petitioner, has not specifically denied the right claimed by the petitioner.

The application was preferred only before the appellate Court. It was only under the said circumstances, the appellate Court dismissed the application. Since there is no finding that the petitioner is not entitled to succeed to the estate of her father, it is always open to her to file a fresh suit for partition. In case the petitioner is entitled to the property left by her father, the decree in O.S. No. 75 of 2006 passed on the basis of a partition deed dated 19 June, 1996, would not stand in her way. I am, therefore, of the view that a fresh suit for partition of the property stated to have been left by the father of the petitioner is maintainable, notwithstanding the decree in O.S. No. 75 of 2006, based on the deed dated 19 June, 1996.

The Civil Revision Petition is disposed of with the above clarification. No costs. Consequently, the connected miscellaneous petition is closed.