(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the Decree and Judgment in A.S.No.9 of 2008 dated 31.07.2009 on the file of the learned Subordinate Judge, Thiruvarur confirming the Judgment and Decree passed in O.S.No.132 of 2001 dated 30.07.2008 on the file of District Munsif Court, Nannilam.)

1. This Second Appeal has been preferred as against the decree and judgment passed in A.S.No. 9 of 2008 on the file of the learned Subordinate Judge, Thiruvarur, dated 31-7-2009. The appellant is the 10th defendant in the main suit. The respondents 1 and 2 have filed the suit in O.S. Number 132 of 2001 on the file of the learned District Munsif cum Judicial Magistrate, Nannilam, for the relief of declaration to declare that the plaintiffs are entitled to 31/136 share and to render accounts, and the said suit was decreed on 30-7-2008. Aggrieved by the said decree and judgment, the defendants 8 to 10 have preferred the appeal in AS No.9 of 2008 on the file of the Subordinate Judge, Thiruvarur, and the said appeal was dismissed by confirming the decree and judgment passed by the trial court on 31-7-2009. Aggrieved by the said decree and judgment, the 10th defendant has preferred this Second Appeal.

2. For the sake of convenience and brevity the parties herein are referred as plaintiffs and defendants as referred before the trial court.

3. The case of the plaintiffs before the trial court is that the 1st plaintiff and defendants 4 to 8 are the sons of Mohammed Sarvar, while the 2nd plaintiff is the widow and 1st defendant is the only daughter. The 2nd defendant is the wife of deceased Mohammed Nuhman. The said Mohammed Saravar is the only son of K.O.M.Ibrahim, who owned extensive properties and also held undivided share in the village Samudayam common properties in Manavalanallur village, which was owned by 72 Muslim families. The said Samudayam properties, are known as Kalian Karai, Pichayyan Karai and Anandappan karai, in which K.O.M.Ibrahim owned one Anna share in the first two karai and the five paise in third khari, totally two annas five paise as his share in the common samudayam properties, K.O.M. Ibrahim was also a trustee in respect of the wakf created in the family in the year 1926.

                   3.1. The said K.O.M. Ibrahim settled the properties among his only son Sarvar and four daughters through settlement deed dated 18-6-1960. As per settlement deed, the first plaintiff's father Sarvar was given the ‘C’ schedule properties as his separate properties. Thereafter, a suit was filed in respect of the properties of personal properties of Sarvar in O.S. No. 110 of 1986 on the file of the Sub Court, Mayuram, by the plaintiff as well as 5 and 7 defendants. One Sababuddin, another son of Mohammed Sarvar, released his share in favour of 5th defendant by way of release deed dated 28-4-1984. The above said suit was decreed by granting 17/136 share to the second plaintiff, and each son got 14/136 shares. The 5th defendant is entitled to 28/136 share. The first defendant was given cash in lien of a 7/136 share. Again, the second plaintiff herein has filed the suit in O.S. No. 91 of 1999 on the file of the District Munsif Court, Nannilam, and the same is pending for passing of final decree.

                   3.2. So far as the common Samudayam joint properties are concerned, they were managed by Muslim Jamath, and previously they were given for cultivation to various persons, and the income realised were divided and disbursed to various shares according to the share held by them and later the properties were divided as house plots. Therefore, the 8th defendant, who was the President of the Jamath, formed a committee for forming layouts of the common property in the year 1998, and thereafter the properties were sold to several persons. Several lakhs of money were realized through the sale in respect of common Samudayam properties and were kept by the 8th defendant as the President of the Jamath, still some plots were remain to be sold. Since the 8th defendant was acting against the interest of the share holders, the 1st plaintiff’s brother and 5th defendant herein filed a suit to restrain the eighth defendant from proceeding with the sale, and thereafter the suit was dismissed as become infructuous. The Jamath is having an account of the survey field, the extent sold, dates of sale, the name of buyers and the amounts realised and their share thereto, but no accounts has been furnished to the plaintiffs. Therefore the plaintiffs filed the suit.

4. The defendants filed written statement that the suit is not maintainable and there is no cause of action for the suit. There is nothing to account by the Jamath, since the sale of Karaivazhi property was done by a committee called ‘Karavazhi Virpanai Committee’. The said committee was formed in the year 1998 and the proceeds of the sale has been distributed to all the eligible persons, who had interest in the Karavazhi land and the accounts of such committee after accomplishing the said task would have been handed over to the President of the said Committee. The disbursement of the sale proceeds were done by the said committee. It is understood that Noor Mohammed son of Mohammed Sarvar, had received sale proceeds on behalf of their family members. The tenth defendant Jamath is no way responsible for any sale of Karavazhi property and distribution of the sale proceeds. The persons who are entitled to the share in Karavazhi, there is nothing to account by the 10th defendant as prayed for by the plaintiffs. The Jamath only facilitated for smooth conduct of the sale of the property and distribution of money, and has no other role in the Karavaahi property or in the sale proceeds.

                   4.1. As far as tenth defendant is concerned, this suit is barred by limitation as against him. According to the sixth defendant, the father of the plaintiff had undivided share through Pichaiyan Karavazhi, and all Karavazhis agreed to form a committee to sell the property, through the committee, the properties were converted into plots and sold through auction in the year 1998. The sale proceeds of those house sites were already disbursed to the families according to their proportionate share. On behalf of the plaintiffs and 5 and 7 defendants, the 6th defendant received the entire amount. As far as 1 and 2 defendants’ husband Muhammed is concerned, his share was disbursed to P.A.Noor Mohammed, and the 3rd defendant also received his share. The 6th defendant, on behalf of the plaintiffs 1and 2 and the defendants 5 and 7, received share amount. During the pendency of the suit, there was an agreement between the 6th defendant and 5 and 7 defendants, and thereby sixth defendant received a sum of Rs.1,40,000/- at that time, of settling the above said amount, money received by the 6th defendant on behalf of the karavazhi, also taken into account, and thereby neither the plaintiffs nor 5 and 7 defendants have right over the properties. Therefore, the suit is liable to be dismissed.

5. Based on the above pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                   “1. Whether the plaintiffs are entitled to the relief of declaration, as prayed for, that the 1st defendant’s father had a right in the common family property and consequently, to obtain a declaration that the plaintiffs are entitled to 31/136 share in the common family property?

                   2. Whether the plaintiffs are entitled to seek accounts for the delivery of possession in respect of the properties sold by defendants 8 to 10?

                   3. Whether the suit as against the 10th defendant is barred by limitation?

                   4. To what other reliefs are the plaintiffs entitled to? Before the trial court, on the side of the plaintiffs, witness PW1 was examined and marked Exhibits A1 to A9. On the side of the defendants, witnesses D.Ws.1 to 10 were examined and marked Exhibits B1 to B4 and marked Exhibits X1 to X3. After considering the evidences adduced on both sides, the trial court has decreed the suit declaring that the plaintiffs are entitled to 31/136 share over the common properties and the 8 to 10 defendants were directed to render accounts for the sale of the properties within three months.

6. As against the said decree and judgment, the 8 to 10 defendants have preferred an appeal in A.S. No. 9 of 2008 on the file of the Subordinate Judge, Thiruvarur on various grounds. The First Appellate Court framed the following point for determination:

                   ‘Whether the appeal has to be allowed or not’.

Thereafter, the First Appellate Court dismissed the appeal by confirming the judgment and decree passed by the trial court on 31.07.2009.

7. Aggrieved by the said decree and judgment, the present Second Appeal has been preferred by the 10th defendant. This Court, at the time of admitting the Second Appeal, on 03.07.2025, has formulated the following Substantial Questions of Law.

                   (i) Whether the Courts below have properly appreciated the scope of Article 57 of the Limitation Act and had come to a correct finding whether the suit was barred under the said Article as against the 10th defendant / appellant?

                   (ii) Whether the Courts below had properly considered the issue of non joinder of necessary party particularly the Committee which had been formed and which is claimed was administering and managing the properties / common Samudayam Properties?

                   (iii) Whether the plaintiffs were entitled to seek the relief of declaration and exclusive possession of a share in the Common Samudayam Properties which normally should be available to be put to common use by all the villagers?

                   (iv) Whether the Courts have properly appreciated the stand taken by the appellant that even according to the plaintiffs, the properties had been sold and therefore, a suit without seeking a declaration to set aside the sale deeds is not maintainable?”

8. The learned counsel appearing for the appellant would submit that the appellant is the 10th defendant, Jamaat. The respondents 1 and 2 have filed the suit for declaration that they are entitled to 31/136 share and they are entitled to common Samudayam properties and to direct the 8th and 10th defendants to render true accounts of the income derived through sale and for costs. According to the plaintiffs, they are the legal heirs of Ibrahim and the said Ibrahim had one son of Sarvar, and the said Sarvar had some other separate properties, and the said separate properties were already divided through heirs of Sarvar. However, the samudayam properties were not divided, in fact, the Karavazhi properties, were sold by forming a committee, namely ‘Kararaivazhi Vrippanai Committee’.

                   8.1. The plaintiffs also agreed to form a committee and sold the properties through that committee. The said committee was formed in the year 1998 and the proceeds of this sale had been disbursed to all the eligible persons, who had interest in the Karavazhi land. The accounts of the such committee, after completing the said task, would have been handed over to the said committee and the Disbursement of sale proceeds were done by the said committee. The sale proceeds were paid to Noor Mohammed, son of Mohammed Sarvar on behalf of their family members. The tenth defendant Jamaat is no way responsible for any sale of Karaivazhi properties and disbursement of the sale proceeds and there is nothing to account by the 10th defendant. However, the courts below, without considering the evidences adduced by the defendants’ side, and without any evidence and pleadings that what is the extent of the property sold by the particular Karavazhi, had decreed the suit. In fact, the committee also only facilitated the sale of the properties of Karavazhi, and the committee has not sold properties. The properties were sold to Karavazhi members, and immediately after sale of the properties, the sale proceeds had been disbursed to the Karavazhi sharers. While so, the plaintiffs have not stated about the properties sold by the committee and without knowledge of the plaintiffs, properties could not be sold and all the shareholders of the Karavazhi have to sign in the documents at the time of selling the properties. While so, without any particulars by the plaintiffs as about how much property of their Karavazhi property was sold, it is not appropriate to grant share to the plaintiffs, without considering the above said aspects the courts below have decreed the suit.

                   8.2. As far as this appellant is concerned, he was impleaded after the period of limitation, and the suit is filed for the entire Karavazhi property and all the Karaidars are necessary parties, and the properties were put into common. While so, the plaintiffs cannot claim exclusive possession and their particular share, and since already properties were sold, without seeking declaration to set aside the sale deed, the suit is not maintainable, and these aspects have not been considered by the courts below. Therefore, the decree and judgment passed by the courts below are liable to be set aside.

9. The learned counsel appearing for the 1st respondent would submit that the respondents 1 and 2 have filed the suit for relief of declaration to declare the share in the Samudayam properties and for rendering accounts. In fact, said suit property originally belonged to K.O.M.Ibrahim and the properties were entrusted to the Jamath for managing the properties, and the Jamat used to sell the properties and thereafter, they used to share the sale proceeds to karaidars. While so, the 8th defendant, who was acting against the interest of Karidars sold the properties according to his whims and facies and there is no transparency in transactions and thereby they filed the suit against the 8th defendant. The suit was later dismissed as become infructuous. The appellants and the defendants 5 to 7 are the legal heirs of one Sarvar son of K.O.M. Ibrahim, therefore they are also karaidars, and there is no accounts furnished to the plaintiffs, and they have 31/136 shares over the common Samudayam properties. Since the 8 to 10 defendants are managing properties, they have to render accounts, thereby filed the suit and in order to prove the case of the plaintiffs, witness PW1 was examined and marked Exhibits A1 to A9. The courts below, after considering the evidences, correctly decreed the suit. The 8 to 10 defendants have not been included as their individual capacity and they are the office bearers of the Jamath and already 8 and 9 defendants were impleaded on behalf of the Jamath, thereby impleading of 10th defendant shall no way affect by law of limitations. The court below have correctly appreciated the facts and law and decreed suit, and the concurrent findings of the court below need not be interfered with. The Second Appeal has no merits and deserves to be dismissed.

10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1st respondent, perused the entire documents placed on record.

11. In this case, the plaintiffs have filed a suit for the relief of declaration to declare that the plaintiffs are entitled to 31/136 share and to render accounts. According to the plaintiffs, they are the legal heirs of one Sarvar, son of K.O.M. Ibrahim and already the properties of Sarvar were divided between his legal heirs, the defendants 1 to 7 and the plaintiffs are legal heirs of the said Sarvar, while so the grandfather of the plaintiffs, namely K.O.M.Ibrahim had common Samudhayam properties and the said K.O.M.Ibrahim was also a trustee in respect of the Wakf created in the family in the year 1926. The plaintiffs in the schedule of property mentioned about 33.67 cents for the common properties of Kalian Karai, Pichayyan Karai and Anandappan Karai, nowhere the plaintiffs had stated that under which karai, they belonged to and what extent the plaintiffs are entitled to. Though the separate properties of the Sarvar were already partitioned between his heirs, the plaintiffs have not mentioned about entitlement of the shares by the plaintiffs, vaguely they stated that the plaintiffs are entitled to 31/136 share. The plaintiffs only stated that the predecessors share is two annas five paisa out of total extent of 72 share out of which 60 cents belongs to his Kalaikara and same works out to 5/32 cents share. After K.O.M.Ibrahim gave his share in Kalaikkara to his daughters, the plaintiff's father owning 45 cents for his share, which works to 3/32. Therefore the above said share has to be determined and there are no records produced by the plaintiffs about the entitlement of the 60 cents, and out of which 45 cents was entitled by father of the plaintiffs and their share works out to 3/32.

12. From the evidence adduced on both sides, we could infer that each Karais have some properties in their particular name, and those properties were entrusted to the Jamath for management, and thereafter, the properties were maintained by Jamath and income of those properties were shared by karaidars in respect of their respective shares. Thereafter, in the year 1998, all the karaidars along with the Jamath decided to sell the properties by forming plots and thereafter the properties were sold and some of the properties still remains unsold. While so the plaintiffs have to state, what is the interest of Karai property and how much properties were sold and how much of properties are remain unsold, which belongs to the plaintiffs Karaidas Without giving correct particulars, the plaintiffs have filed the suit for the entire properties, and the plaintiffs have also failed to implead all the shareholders in the suit property, or the Karaidas, who have share over the properties for the extent of 33.67 cents. The Plaintiffs also admitted some of the properties were sold to third parties, while so, when the suit is filed for declaration, it is the duty of the plaintiffs to implead all the shareholders who have right over the entire extent of the suit property, but the plaintiffs only impleaded the family of the Sarvar.

13. Further, from the available evidence, the Court can infer that the committee formed by Jamath did not sell the property and they only facilitated the Karaidars to sell the property and after the sale, they used to disburse the sale proceeds to karaidars, as per their shares. At the time of sale of properties, all the sharers of karaidars have to execute the sale deed, while so there is no reference in the plaint when the plaintiffs sold the property of their karaidars and without any particulars they filed the suit, as if they are entitled to the properties. In fact, as per the written statement filed by the defendants, some of the properties of the pichaiyankarai also belongs to plaintiffs, in which the descendants of the karai have sold properties and the sale proceeds were given to sixth defendant. While so, the plaintiffs and defendants 5 to 7 entered into agreement and in lieu of the share of the plaintiffs and defendant 5 and 7, the sixth defendant relinquished his rights in respect of the remaining properties, and thereby the amount received by sixth defendant on behalf of the plaintiffs and five and seven defendants was adjusted. Therefore, the sale price sharing is between the plaintiffs and defendants 5 to 7.

14. As far as committee is concerned, already amount was shared to the Karaidars, and the defendants also not questioned about the sale deed, which was executed, and without seeking declaration of sale deed, which were already sold, the plaintiffs cannot maintain the suit for declaration. Moreover, without impleading all the Karaidars, the suit is bad for non-joinder of necessary party, and plaintiffs cannot claim exclusive possession of the common Samudayam properties, once they allowed the property for common enjoyment. Therefore, once the properties were sold without seeking to set aside the sale deeds and without impleading all the shareholders for the suit property, the suit is not maintainable.

15. As far as limitation is concerned, the suit is filed for declaration and the limitation period is three years, but the suit has been filed in the year 2001, impleading the 1 to 9 defendants. The 10th defendant was impleaded in the year 2007 after the period of limitation. The Jamath was not impleaded at the time of filing of the suit and the 10th defendant /Jamat was impleaded only year in 2007, that too after a period of six years from the date of plaint. Therefore the suit is barred by limitation as against the appellant/10th defendant. The courts below have failed to consider that the suit has been filed after the period of limitation in respect of the 10th defendant and as per Article 57 of Limitation Act, limitation period is three years. The suit is filed in the year 2001 and the 10th defendant was impleaded in the year 2007. Therefore the suit is barred by limitation as far as 10th defendant is concerned. However, the courts below have failed to consider the same.

16. Further, the courts below failed to consider that the suit is filed for declaration and without impleading all the kararidars as proper and necessary parties, therefore, all the Karaidars are proper and necessary parties. Hence the suit is bad for non-joinder of necessary parties. Since the plaintiffs themselves admitted that the properties are common samudayam properties and the properties were managed by the Jamath commonly and once the properties were enjoyed as a common, the plaintiffs cannot claim any exclusive possession and they can seek accounts for their share only. So it is the duty of the plaintiffs to establish that what was the share belonged to them, whether any properties of the Karaidars were sold, if so, to that extent they are entitled to seek accounts. However, according to the defendants, immediately after the sale of properties, money has to be disbursed to the share of Karaidars. thereby, without any particulars about the sale of properties of Karais it is not appropriate to order for rendering accounts. Even according to the plaintiffs, the properties were already sold, if so which properties of the said Karai were already sold, to what extent the properties were sold, has to be explained by the plaintiffs, and without seeking any relief in respect of the sale deeds, already executed, the suit for declaration in respect of the entire properties of the Karaidars is not maintainable, and these aspects have not been considered by the court below and the court below rendered perverse findings without any evidence and brushed aside the evidence on the defendants' side, thereby the decree and judgment passed by the courts below are unsustainable.

17. Moreover, the plaintiffs have not identified the properties, among the suit properties how much properties were contributed by the particular karaidars of the plaintiffs to the common samudayam properties, is not known. Though three karaidars were involved in the properties among the said karaidars, how much extent of properties were shared by the plaintiffs/ karaidars has not been explained by the plaintiffs and they have not identified the properties. Therefore, framing of suit itself is not in accordance with law. Therefore, the Substantial Questions of Law are answered in favour of the appellant and as against the respondents.

In view of the above discussions, the Second Appeal is allowed and the Judgment and Decree passed by the trial court in O.S. No.132 of 2001 dated 30.07.2008 on the file of the learned District Munsif cum Judicial Magistrate, Nanilam confirmed by the First Appellate Court in A.S. No.9 of 2008 on the file of Subordinate Court, Thiruvarur dated 31.07.2008 are set aside and the suit in O.S. No. 132 of 2009 is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.