K SAMPOORNAM Vs. M KARTHIESWARAN

JUDGEMENT

(1.) THIS appeal arises out of the order of remand dated 22.10.2010 passed by the learned Principal District Judge, Erode, in A.S.No.16 of 2010, whereby the judgment and decree dated 24.10.2009 passed by the learned II Additional Subordinate Judge, Erode, were set aside and the matter was remanded to the trial court for fresh disposal. The appellant herein is the plaintiff and respondents 1 to 3 herein are defendants 5 to 7 and respondents 4 to 7 are defendants 1 to 4 before the trial court.

(2.) THE circumstances, which led the appellant/ plaintiff to file the present appeal, are as follows: (a) THE plaintiff filed the suit for partition and separate possession of her 1/3rd share in the suit properties. THE suit properties belonged to one Muthusamy Gounder, who died intestate on 30.03.2003, leaving his wife Chinnammal, who also died intestate on 18.12.2004 and they had no issues. Ramasamy Gounder is the brother of Muthusamy Gounder and he had one son Raju and two daughters Ammaniammal and Sampoornam (the plaintiff). THE said Raju also died on 04.07.2002 leaving behind him his wife Ramayee, Kathirvel and Easwaran. THE relationship of the parties can be easily understood from the following genealogy table: Palanisamy | | ---------------------------------------- | | MuthusamyGounder Ramasamy Gounder | | Chinnammal(wife) | | ------------------------------- | | | Raju(died) Ammaniammal(died) Sampoornam | | (plaintiff) | | --------------------------- Eswari | | | (daughter) RamayeeKathirvel Eswaran (wife) (son) (son) THE plaintiff filed the suit as against the wife and children of deceased Raju Gounder describing them as defendants 1 to 3 and also daughter of deceased Ammaniammal as the 4th defendant. Since defendants 1 to 4 are evading partition and defendants 5 to 7 are making a false claim that the deceased Chinnammal, wife of Muthusamy Gounder, had executed a Will in their favour, the plaintiff filed the suit. (b) THE said suit was contested by defendants 5 to 7 stating that the suit was filed in collusion of agnate defendants 1 to 3. During the life time of Muthusamy Gounder, he executed a power of attorney in favour of the 7th defendant to initiate eviction proceedings against the 2nd defendant from item 2 of the suit properties and he also filed RCOP No.26 of 2002 before the I Additional District Munsif Court, Erode. THEreafter, the said Muthusamy Gounder died and after his death, Chinnammal executed a power of attorney in favour of the 7th defendant and on the basis of which, the 7th defendant filed eviction petition in RCOP No.1 of 2004 and during the pendency of the rent control petition, Chinnammal also died. In fact, Chinnammal, while in sound state of mind, during her last days, executed a Will in favour of defendants 5 to 7 and after her death, defendants 5 to 7 became the absolute owners of the suit properties and other properties mentioned in the Will. Defendants 2 and 3, who are occupying item 2 of the suit properties as tenants, refused to pay rent and also refused to vacate the premises even during the lifetime of Muthusamy Gounder with a view to squat on the property even without paying the rent. THE present suit has been filed by the plaintiff only to prevent defendants 5 to 7 from evicting defendants 2 and 3 from the 2nd item of the suit properties, in collusion with defendants 1 to 3, and thus, they prayed for the dismissal of the suit. (c) Before the trial court, on the side of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 and A-2 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-8 were marked. THE trial court, on consideration of entire evidence, granted a preliminary decree in favour of the plaintiff. Aggrieved over the same, defendants 5 to 7 filed an appeal before the Principal District Court, Erode, in A.S.No.16 of 2010 along with I.A.No.48 of 2010 to receive the documents as evidence, stating that at the instance of Muthusami Gounder, the 7th defendant filed a rent control proceedings against the 2nd defendant and after the demise of Muthusamy Gounder, his wife Chinnammal executed a power of attorney in favour of the 7th defendant and pending the rent control proceedings, Chinnammal died and hence, defendants 5 to 7 filed an application to implead themselves as parties in the said rent control petition, which was allowed. Against which, the 2nd defendant Eswaran preferred an appeal and the same was allowed. Hence, these defendants preferred CRP No.1678 of 2007 before this Court, which was allowed, permitting the parties to adduce evidence to prove the Will. THE Will has also been produced before the Rent Controller. At that time, the present suit was filed by the plaintiff and the same was dismissed for default on 05.07.2006. Subsequently, the suit was restored to file on 14.10.2008. THEy were not in a position to produce the original Will in the suit and hence, they produced the xerox copy of the Will. But, the trial court has dismissed the suit based on the non-production of the original Will. THErefore, they filed the interim application to receive the original will as additional document. (d) THE said petition was vehemently opposed by the plaintiff. THE lower appellate court, rejecting the objection raised by the plaintiff, set aside the judgment and decree of the trial court and remanded the matter to the trial court for the purpose of marking the Will on a reasoning that the original Will has to be marked directly, so that an opportunity must be given to the otherside to cross examine with regard to the same. Aggrieved over the order of remand, the present appeal has been filed by the plaintiff.

(3.) BY way of reply, the learned counsel for the appellant/plaintiff relied on the decision reported in KANAKAYYA .vs. LAKSHMAYYA (AIR (38) 1951 MADRAS 218) and submitted that a right of appeal is a substantial right; even if the evidence is recorded during the pendency of the appeal, once if the order of the lower appellate court is set aside, the entire proceedings that had taken place before the trial court during the pendency of the appeal, will ipso facto cease to have any force.