SA dismissedTHE HON’BLE MR.JUSTICE K.K.RAMAKRISHNAN A.S(MD) Nos.33 of 2006 and S.A.(MD).No.468 of 2007 and C.M.P.(MD).Nos.10927 and 11252 of 2025 A.S.(MD).No.33 of 2006 Seethalakshmi 1.Ramuthai –

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 24.07.2025
Pronounced on 10.11.2025
CORAM:
THE HON’BLE MR.JUSTICE K.K.RAMAKRISHNAN
A.S(MD) Nos.33 of 2006 and S.A.(MD).No.468 of 2007 and
C.M.P.(MD).Nos.10927 and 11252 of 2025
A.S.(MD).No.33 of 2006
Seethalakshmi
1.Ramuthai –Vs– — Appellant
2.Saraswathi — Respondents
Prayer : This Appeal Suit has been filed under Section 96 of C.P.C., to reverse and set aside the fair and decreetal order dated 27.06.2005 in I.A.No.25 of 1999 in O.S.No.23 of 1994 on the file of the District Court, Sivagangai.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents : Mr.M.Rajaram for R1
: Mr.B.Sathish sundar for R2
S.A.(MD).No.468 of 2007
Saraswathi — Appellant
–Vs–
1.Krishnamoorthy (died)
2.Seethalakshmi
3. K.Kumar
4. K.Mohan — Respondents
(The respondent Nos.3 and 4 are brought on record as Lrs of the deceased 1st respondent vide Court order dated 19.07.2022 made in C.M.P.(MD).No.9060 of 2017 in S.A.(MD).No.468 of 2007
Prayer : This Second Appeal has been filed under Section 100 of
C.P.C., to reverse and set aside the judgment and decree passed in
A.S.No.39 of 2002 on the file of the Sub Judge, Sivagangai dated
11.03.2005 confirming the judgment and decree passed in O.S.No.69 of 2000 dated 31.10.2001 on the file of the Principal District Munsif, Sivagangai.
For Appellant : Mr.B.Sathish Kumar
For Respondents : Mr.S.Srinivasa Raghavan for R2 & R4 : R1 and R3 died.
COMMON JUDGMENT
The second defendant in O.S.No.23 of 1994, has instituted this appeal challenging the order passed in the final decree application in I.A.
No. 25 of 1999, by way of the impugned judgment dated 27.06.2005.
2.The appellant and the first and second respondents are sisters. Their father, Subbaiah Naicker, owned several properties mentioned in the suit schedule. His wife predeceased him in the year 1982, and he died intestate on 17.03.1985. After the demise of Subbaiah Nayakar, the second respondent/plaintiff filed a suit in O.S. No. 23 of 1994, seeking partition of the ‘A’ and ‘B’ Schedule properties. The ‘A’ Schedule consisted two items, and the ‘B’ Schedule consisted four items of properties. After contest, a preliminary decree was passed by the trial court on 08.08.1995, declaring the second respondent’s entitlement to “the first item of the ‘A’ Schedule property” and the “entire property in the ‘B’ Schedule properties”. Aggrieved by the said decree, the present appellant preferred an appeal before this Court in A.S.No.391 of 1996, which was subsequently dismissed.
3.Thereafter, the first respondent/first defendant filed a final decree application in I.A.No.25 of 1999, in which an Advocate Commissioner was appointed to effect division of the properties and the learned Judge after considering the pleadings and the Advocate Commissioner’s report and the argument of the learned counsel
appearing for the parties passed the following final decree in respect of the scheduled property (Item No.1 of the A scheduled property) in O.S.No.23 of 1994 vide impugned judgment dated 08.08.1995:
Sl.
No. Name of the parties Description of the schedule of divided item in the sketch Ex.C.6
1 Plaintiff in O.S.No.23 of 1994 Saraswathi “B” Property
2 First defendant Ramuthayee “A” Property
3 Second defendant/
Seethalakshmi “C” property
The first defendant in O.S. No. 23 of 1994 has challenged the impugned final decree dated 08.08.19955 in I.A. No. 25 of 1999.
4.The learned counsel for the appellant submitted that the appellant does not dispute the allotment of shares in respect of the ‘B’ Schedule properties. The dispute pertains only to the division and allotment of the first item of the ‘A’ Schedule property, particularly with reference to the separate measurements annexed to the plaint. The learned counsel contended that the Advocate Commissioner failed to take into account that the first item of the suit ‘A’ Schedule property in Survey No.33 forms part of the appellant’s property situated contiguous to Survey No.32, and this aspect was not properly considered. It was specifically contended that the property in question is indivisible, and without adhering to the procedure prescribed under the Partition Act, the Commissioner divided the property, thereby causing grave prejudice to the appellant by diminishing the value and extent of the property and disturbing her long term possession over the suit property. Hence, the appellant seeks to set aside the final decree passed in I.A. No. 25 of 1999 by the impugned judgment.
5.Per contra, the learned counsel for the plaintiff and the first respondent submitted that the appellant’s contention that the ‘A’ Schedule property forms part of the second item of the ‘B’ Schedule property is contrary to the preliminary decree, wherein the division and entitlement of the properties, including Door No. 33, were clearly settled. It was argued that such a contention is impermissible at the stage of final decree proceedings, as the preliminary decree has attained finality. In support of this submission, reliance was placed on the judgment of the Hon’ble Supreme Court. The learned counsel further submitted that the suit was instituted in the year 1995, and the appeal suit was dismissed in 1998. Despite the lapse of considerable time, the respondents are not able to enjoy the fruits of the decree, owing to the appellant’s occupation of the property and her repeated attempts to prolong the proceedings by filing frivolous petitions and raising untenable contentions, which are not permissible once the preliminary decree covering the suit schedule properties has been passed. All the contentions raised regarding the suit Item No. 2 of the suit schedule property in O.S. No. 23 of 1994 are without merit, as the learned Trial Judge has already given a categorical finding that the plaintiff is entitled to partition in respect of the first item of the ‘A’ Schedule property. The Advocate Commissioner, with the assistance of the Town Surveyor and after perusal of the relevant records, measured the properties and filed a detailed report. Upon considering the entire evidence, both oral and documentary, the learned Trial Judge held that the property is partible and that each party is entitled to an equal share in the valuable properties situated in Sivagangai Town.
Accordingly, the properties were divided in equal proportion based on their respective enjoyment. Hence, there is no infirmity or illegality in the final decree passed by the learned Trial Judge based on the report submitted by the Advocate Commissioner.
6.By way of reply, the learned counsel for the appellant contended that there was no proper demarcation of Door No. 32 (Item No. 2 of the property) at the time of measurement.
7.Conversely, the learned counsel for the respondent submitted that the appellant’s contention that Door No. 33 (Item No. 1 of the property) also forms part of Item No.2 is directly contrary to the findings rendered in the preliminary decree. It was further submitted that this Court lacks jurisdiction to reopen or re-examine the correctness of the preliminary decree, which has already been confirmed in appeal. Hence, the respondent sought dismissal of the appeal.
8.This Court has carefully considered the rival submissions made by the learned counsel appearing for both parties, perused the materials available on record, and took into account the precedents relied upon by them.
9.The main question arising for consideration in this appeal is whether the final decree passed by the learned Trial Judge on the basis of the Advocate Commissioner’s report is sustainable in law.
10.Once the learned Trial Judge, in O.S. No. 23 of 1994, has granted a decree against the properties including the suit schedule property bearing Door No. 33, this Court cannot reopen or re-adjudicate matters that were finally concluded under the preliminary decree. It is a well-settled principle that the Court, while dealing with a final decree application or any connected proceedings, has no jurisdiction to go behind or re-adjust the findings rendered in the preliminary decree. Therefore, this Court declines to interfere with the same. The reliance placed on the following judgments of the Hon’ble Supreme Court is well founded:
10.1.In the case of Venkata Reddy v. Pethi Reddy, reported in
1962 SCC OnLine SC 320, it is held:
A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree — the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.
10.2.In the case of Mool Chand v. Dy. Director, Consolidation, reported in (1995) 5 SCC 631, it is held:
Once a preliminary decree is passed, the proceedings so far as declaration of rights or interests in the land are concerned, come to an end…
10.3.In the case of Venkatrao Anantdeo Joshi v. Malatibai, reported in (2003) 1 SCC 722, it is held:
10. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree.
11. It is pertinent to note that the suit was originally filed in the year 1992 before the learned Subordinate Judge, Sivagangai, and was subsequently transferred to the file of the learned District Judge, Sivagangai, and renumbered as O.S.No.23 of 1994. The dispute is between two sisters. The appellant, who has been in possession of the property, filed objections to the Commissioner’s report during the FINAL proceedings in I.A.No.25 of 1999. For better appreciation, it is necessary to note that, as rightly argued by the learned counsel for the respondent, the objections raised by the appellant relate to matters which was already adjudicated in the preliminary decree. The learned Trial Judge, while passing the preliminary decree in O.S.No.23 of 1994, specifically held that the appellant had failed to establish any independent right over the first item of the ‘A’ Schedule property. Her pleas of long possession, oral purchase, and exclusive enjoyment were all considered and categorically rejected by the learned Trial Judge in the preliminary decree proceedings.
12.In view of the above circumstances, the objection raised by the appellant that the first item of the ‘A’ Schedule property forms part of Item No. 2 of the same schedule is wholly misconceived and contrary to the findings in the preliminary decree, which has already been confirmed by this Court.
13.Apart from the above, the learned Advocate Commissioner, on perusal of the entire records and after doing measurements, specifically found that the suit property is divisible. The property being situated within the Sivagangai town limits, each of the co-sharers is entitled to have a separate house site in the town area. Taking into consideration this aspect, the learned Advocate Commissioner divided the property in equal proportion among the parties. There is no allegation of any unequal distribution of the land.
13.1.The only contention raised by the appellant before the learned Trial Judge during the final decree proceedings was that the property is indivisible and another objection to the learned Commissioner’s report was that there was no proper demarcation of item No.2 of the A Scheduled property in O.S.No.23 of 1994.
13.2.The relevant portion of the counter and objection to the learned Commissioner’s report are extracted as follows:
Objection in the counter in I.A.No.25 of 1999: Averment in the counter
affidavit in I.A.No.25 of 1999
3. jhth “A” ml;ltiz nrhj;jpy; 2tJ yf;f nrhj;J ghfg;gphptpidf;F cl;gl;lJ my;y vd;Wk; me;j gpuk; 08.08.1995 Njjpapl;l ,e;j KjNyw;G tof;fpd; jPh;g;GiuapYk; gpw;Nrh;f;if Kjd; epiy jPh;g;ghizf;fhd kDf;fshd ,.k.vz;.1/1998 kw;Wk; ,.k.vz;.1/1998 Mfpa kDf;fspd; cj;jutpYk; ,Wjpepiy jPh;g;ghizf;fhd kDtpYk; “A” ml;ltiz nrhj;jpy; 2tJ yf;f nrhj;J Fwpg;gplg;gltpy;iy vd;gijAk; 2k; vjph;kDjhuh; jug;gpy;
Rl;bf;fhl;lg;gLk; mr;nrhj;ijAk; fl;Lg;gLj;jp ePjpkd;w Mizah; jdJ mwpf;ifia jhf;fy; nra;J ,Ug;gJ
Ml;Nrgpf;fg;gLfpwJ.
4. jdJ mwpf;ifapy; 5 tiuglq;fis
Fwpg;gplg;gl;Ls;s ePjpkd;w Mizah; mjd; efy;fis 2k; vjph;kDjhUf;F msf;ftpy;iy. VdNt mtw;iw ghh;itapl;lgpd; $Ljy; Ml;Nrgiz ciu jhf;fy; nra;ag;gLk; chpikia 2k; vjph;kDjhuh; ,jd; %yk; jf;f itj;Jf;nfhs;fpwhh;.
5. gy;NtW fhuzq;fisf; Rl;bf; fhl;b
mtw;wpf;fhd Mjhuq;fis tpsf;fp jhth “A” ml;ltiz 2tJ ,yf;f nrhj;J ,Wjpepiy jPh;g;ghizapd; %yk; ghfk; gphpf;ff;$bajy;y vd ,uz;lhk; vjph;kDjhuh; jug;gpy; njhptpf;fg;gl;l NghJk; me;j Ml;nrgizfis ePjpkd;w Mizah; fhuzk; Vjk; $whky; epuhfhpj;jpUg;gJ Vw;Wf;nfhs;s $baJ my;y.
6. “A” ml;ltiz 2tJ ,yf;f nrhj;jhdJ
T.S.No. 32f;F fpof;NfAk;> Nkw;NfAk;> njw;NfAk; cs;s
T.S.No. 33y; fl;Lg;gl;l xU gFjp vd;gij ePjpkd;w Mizah; jdJ mwpf;ifapy; Fwpg;gplg;gltpy;iy. T.S.No. 33y; Rg;igah ehaf;fUf;F ghj;jpakhd nrhj;J kl;LNk ,e;j tof;fpy; gphptpidf;F cl;gl;l nrhj;J vd;gijAk; T.S.No. 33d; nkhj;j tp];jPuzk; KotJk; jhth nrhj;Jf;fspy; fl;Lg;gltpy;iy vd;gijAk; Mizah; jdJ mwpf;ifapy; Fwpg;gpltpy;iy.
7. tof;Fiuapy; “A” gl;bay; 2tJ yf;fj;jpy;
vz;.T.S.No. 33 vd;W nghJthf Fwpg;gplg;gl;L ,Ue;jhYk; mJ m gl;bay; 1tJ nrhj;jpy; cs;s nghJthd midj;J ,lq;fs; thjp> gpujpthjpf;F ghj;jpag;glhj fjT vz;.41f;F Nkw;Nf cs;s Nkw;gb fhyp ,lj;jpd; Nkw;Fg; gFjp Mfpatw;iw cs;slf;fpwJ vd;gijAk; mt;tifapy;
T.S.No. 33 vd;w vd;gJ jhth m gl;bay; 1tJ yf;fj;NjhL
Kbtile;J tplhj fjT vz;.43 nfhz;l tPl;bw;F Nkw;NfAk; 2tJ yf;fj;jpYk; mike;Js;s nrhj;J vd;gijAk; ePjpkd;w Mizah; jdJ mwpf;ifapy;
Fwpg;gpltpy;iy. GpuhJ nrhj;J tpguk; V n\bAypy; 1 tJ yf;fj;ijg; nghWj;j tiu thjp rh;Nt vz;.33y; cs;s fhypaplk; vd;W kl;Lk; jd; ngha;tof;fpw;Fj;Njhjhf Afkhf Nghl;L ,Uf;fpwhh;. Nkw;gb nrhj;jpwF;k; foNky; njd;tly; msTfSk; tp];jPuzKk; nfhLf;fg;glhjjpypUe;J thjpapd; — vz;zk; ed;FJyq;Fk;. Nkw;gb Gy vz; 33 y; cs;s fhypaplKk; ,e;jg; gpujpthjpapd; fzth; fpU\;z%h;j;jpahy; 28.11.1963 y; fpuak; thq;fg;gl;L mjhtJ Nkw;gbahhpd; jpUkzj;jpw;F Kd;gpUe;j fhyj;jpw;F Kd;Ng jd;Dila jdpj;j ghj;jpaj;jpy; ,uz;L ff;$];fs; fl;b itj;Jk; %d;W Ntg;g kuq;fs; itj;Jk; jd; iftrk; itj;J mDgtpj;J tUfpwhh;. jhth V n\bAypy; 2tJ yf;fj;jpy; rh;Nt ek;gh; 32 y; cs;s fhypkidaplKk; mjpy; Gjpjhff; fl;lg;gl;Ls;s ehd;F tPLfSk; vd;W
Fwpg;gpl;ggl;bUg;gjhy; Nkw;gb ehd;F tPLfSk;
Nkw;gb rh;Nt ek;gh; 32 y; cs;s fhypkidaplKk;
,e;jg; gpujpthjpapd; fzth; fpU\;z%h;j;jpf;F Nkw;gb 28.11.1996 k; Njjpapl;l fpuagj;jpujj;pd;gb jdpjj; ghj;jpakhdjhFk;. NkNy fz;lthW Nkw;gb nrhj;Jf;fis jd; rpdd;khkdhh; Furhkp whaf;fhplk; fpuak; thq;fp 2 tJ yf;fj;jpy; fz;l ehd;F tPLfisAk; jd; nrhe;j Intrpy; ,Ue;J fl;b gpwj;jpapy; thliff;F tpl;Lk; kPj ,lq;fspy; Ie;J njd;id kuq;fSk; itj;J cz;L gz;zpAk; exclusive Mf jd; iftrk; itj;J mDgtk; nra;J tUfpwhh;.
Nkw;gb nrhj;Jf;fspy; ghfk;Nfhu thjpf;Nfh md;wp 1 k; gpujpthjpf;Nfh ve;jtpjhkhf chpikAk; fpilahJ
Nkw;gb nrhj;Jf;spYk; fjT vz; 40 41 cs;s tPLfspYk; rl;l fhyj;jpw;F Nkw;gl;l ePbj;j njhlh;e;j epuhl;Nrgidahs mDgtj;jpd; %yk; ,e;j gpujpthjpapd; fzth; fpU\;z
%h;j;jpf;Fk; gphp];fphpg;bt; ilg;gpy; ml;th;]; nghrrDk; rpj;jpj;jpUf;fpwJ. Xg;Gf;nfhs;shky; thjj;jpw;fhf thjpf;Fk; 1 k; gpujpthjpf;Fk; Nkw;gb nrhj;Jf;fspy; VnjDk; ghj;jpak; cz;L vd;W itj;Jf; nfhz;lhYk; $l Nkw;gbahh;fSf;F Nkw;gb nrhj;Jf;fspy; rl;l fhyj;jpw;Fs; ve;jtpjkhd mDgtKk; ,y;yhjjhy;
Nkw;gbahh;fSila ghj;jpaKk; principles of ouster
%yk; erpj;Jg; Ngha; tpl;lJ
14.The learned Advocate Commissioner had clearly demarcated the property, which is evident from the diagram annexed to his report. For better appreciation, this Court has extracted hereunder the coloured copy of the Commissioner’s report and perused and finds that the properties were properly measured and demarcated, with specifically excluding the first and second items of the suit schedule property as described: 

15.Therefore, the contention of the learned counsel for the appellant that there was no demarcation of Item No.2 of the property cannot be accepted. Furthermore, the learned Advocate Commissioner measured the property in the presence of the appellant and her counsel, with the assistance of the surveyor, and carried out the division by metes and bounds without bias or favour, ensuring that no undue advantage was conferred on any party. The valuation of the divided properties was found to be equal, and allotments were made keeping in mind the convenience of enjoyment by each co-sharer. In particular, the portion allotted to the appellant lies contiguous to the property which is already in her enjoyment. Hence, the claim of the appellant that the second item of the suit schedule property is covered under Door No.33, being the first item of the ‘A’ Schedule property in O.S.No.23 of 1994, is wholly untenable and factually incorrect. This Court is not inclined to reexamine the said issue, since the final decree application has already been decided on the basis of the preliminary decree passed by the learned
Trial Judge.
16.During the pendency of this appeal, two interlocutory applications were filed by the parties. One such application, C.M.P.No.
10927 of 2025, was filed by the appellant seeking to receive the Advocate Commissioner’s report filed during the pendency of the suit as an additional document to substantiate her claim that there was no clear demarcation of the property during the final decree proceedings. This Court has carefully perused the said application. The main contention of the learned counsel for the appellant is that the Commissioner’s report filed during the preliminary decree proceedings contradicts the final decree Commissioner’s report. However, this Court is unable to accept the said contention for the reason that the application is not only very belated but also lacks any pleadings relating to the said document in the course of the final decree proceedings.
17.It is further seen that the application filed during the pendency of the suit contained pleadings regarding oral partition and other disputes concerning entitlement, all of which were duly considered and rejected by the learned Trial Judge while passing the preliminary decree. On perusal of the earlier Commissioner’s report, it is seen that it merely referred the possession of the appellant and contained a diagram showing the extent of her occupation, but it had no reference to any dispute as to whether Door No.33 (Item No.1) formed part of the second item of the property. Even otherwise, it is a well-settled principle that an interlocutory order merges with the final decision in the suit. In the present case, the learned Trial Judge, while granting the decree for partition, considered all objections raised by the appellant and passed the preliminary decree in favour of the respondent in respect of Door No.33 of the suit schedule property. Therefore, the interlocutory application is misconceived and devoid of merit and is liable to be dismissed.
18.Another application was filed by the first respondent in C.M.P.No.11252 of 2025, seeking permission to mark the sale deed executed in favour of the appellant’s husband, Krishnamoorthy, in respect of the second item of the suit schedule property involved in the preliminary decree passed in O.S.No.23 of 1994. In the said application, the first respondent sought to mark the sale deed dated 28.11.1963, executed in favour of the appellant’s husband, to demonstrate that the document does not contain any clear description or reference to the extent or boundaries of the property purportedly purchased. It was contended that the sale deed merely refers to the property in general terms without any specific measurement or survey details. Therefore, the claim of the appellant that the said property forms part of the suit schedule property covered under the preliminary decree is un-sustainable and contrary to the recitals contained in the sale deed itself. This Court earlier found that the advocate commissioner clearly measured the property in the presence of appellants, her counsel and the surveyor and already demarcated the property in the report and annexed and produced the same. Therefore, this Court is inclined to dismiss the C.M.P. (MD)No.11252 of 2025. Accordingly, C.P.M.(MD).No.11252 of 2025 is dismissed.
Conclusion:
19. 1.Despite having already canvassed all issues in the preliminary proceedings, and in O.S.No.23 of 1994 on the file of the District Court, Sivagangai, the matter having attained finality in A.S.No.391 of 1996 on
20. 12.1996, she has now filed a counter raising the very same contentions which were already taken and rejected in the earlier partition suit. The preliminary decree was passed nearly twenty years ago, and there is no reasonable explanation from her side for reopening the issues that attained legal conclusiveness long back. In view of the above, this Court finds no material irregularity or infirmity in the impugned final decree.
19.2.The harmonious family bond, formed by birth and
strengthened through love, affection, mutual tolerance, and trust, has been irreparably broken due to the greed exhibited by the person in possession of the joint family properties, or by the imbued egoism of such person. Everyone must keep in mind following saying:-
“Property saves none;
Healthy relationships save life.”
Life is, indeed, unpredictable. Everything can change and be taken away in the blink of an eye. The appellant is aged about 70 years, and she has already prolonged the matter despite having had ample opportunity to show magnanimity towards her own sisters.
As Dr.A.P.J.AbdulKalam has rightly said:
“Let us sacrifice our today so that our children can have a better tomorrow.”
Let egoism be shed today itself as our National Father Mahathma Gandhi said “when the ego dies, the soul awakes”. Therefore, this Court expresses its sincere hope and expectation that the appellant, atleast now would come to her senses and show generosity by effecting the division of properties in accordance with the impugned final decree, thereby bringing an end to this partition litigation that has been pending for more than 30 years, restoring peace and happiness in the family and this Court is inclined to issue a direction to the learned trial Judge to divide the property as per the final decree and to hand over possession to each parties within a period of two months from the date of receipt of a copy of this order.
19.3.Accordingly, this appeal suit is dismissed confirming the decree in I.A.No.25 of 1999 in O.S.No.23 of 1994 on the file of the District Court, Sivagangai with direction to complete the process of the handing over the possession to each parties as per allotment in the final decree in I.A.No.25 of 1999 within a period of two months from the date of receipt of a copy of this order and the connected miscellaneous petition are closed. There shall be no order as to costs.
20.Accordingly, C.M.P.(MD).Nos.10927 and 11252 of 2025 are also dismissed. No costs.
21.Discussion on the Second Appeal in S.A.(MD).No.468 of
2007:
21.1.The second respondent in A.S.No.33 of 2006 filed the suit in
O.S.No.69 of 2000 before the Principal District Munsif Court, Sivagangai, challenging the dismissal of her suit for declaration and recovery of possession of the suit-mentioned property, namely, the southern portion of Door No.41 of Sivagangai Town.
21.2. The second respondent averred in O.S.No.69 of 2000 that she was an absolute owner of the suit property, situated on the southern side of Door No.41 of Sivagangai District, which originally belonged to her father, and on the basis of registered Will dated 02.11.1978 the appellant in A.S.(MD).No.33 of 2006 along with the appellant’s husband, claimed ownership over the property and they were in the illegal occupation. Hence, the second respondent filed the suit seeking a declaration regarding the suit schedule property and recovery of possession from the appellant in A.S.No.33 of 2006 and her husband. They specifically stated that the suit property did not form part of the earlier partition suit in O.S. No. 23 of 1994.
21.3. The appellant in A.S.(MD).No.33 of 2006 filed a written statement contending that the suit property did, in fact, form part of O.S. No. 23 of 1994, and that the present suit was filed clandestinely to seek a declaration in respect of a portion of the property already settled in the earlier litigation. They alleged that the plaintiff had taken a contrary stand in O.S. No. 23 of 1994 and therefore the present suit was liable to be dismissed on the principle of res judicata. They further stated that they had already vacated the premises and were managing the property on behalf of appellant, and hence the suit was filed without any cause of action and sought to dismiss the suit.
21.4.The Trial Court, after considering all issues, dismissed the suit, holding that the suit property formed part of O.S.No.23 of 1994 and that the plaintiff was not entitled to recovery of possession. The plaintiff’s claim based on the alleged Will was also rejected. The present suit in O.S. No. 69 of 2004 was held to be barred by res judicata. Challenging this decision, the plaintiff filed Appeal Suit No. 39 of 2002 on the file of the Principal Sub Court, Sivagangai, and that appeal was also dismissed.
21.5.Aggrieved by these concurrent findings, the plaintiff filed the Second Appeal, which was admitted on the following substantial question of law:
1.Whether the Courts below have erroneously hold that the decree passed in O.S.N o.23 of 1994 will operates as res judicata for the present suit.
21.6.Learned counsel for the appellant submitted that Krishnamoorthy has vacated the premises. He also submitted that earlier this Court had clubbed this Second Appeal with A.S.No.33 of 2006 and observed that the main issue in this Second Appeal would subject to the disposal of the present Appeal suit in A.S.(MD).No.33 of 2006.
21.7.This Court considered the submissions and the substantial question of law framed. The Courts below had categorically held that the suit property formed part of the earlier partition suit, and therefore the declaratory relief sought by the plaintiff, is barred under the principle of resjudicata. This Court finds no error in the concurrent finding much less any palpable error in the finding of both the Courts below.
22.Hence, this Court finds no merit in the Second Appeal and hence, the substantial question of law framed is answered against the appellant.
23.Accordingly, the Second Appeal stands dismissed and
considering the relationship between the parties no cost is imposed.
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NCC : Yes/No
Index : Yes/No Internet: Yes/No sbn
K.K.RAMAKRISHNAN,J.
sbn
A.S(MD) No.33 of 2006 and S.A.(MD).No.468 of 2007

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