BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.07.2014 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL(MD)No.339 of 2009 and MISCELLANEOUS PETITION(MD)No.1 of 2009 1.V.Shanmugasundaram Reddiar (died) 2.Poongani 3.Mallika 4.Vijayarajan 5.Indira 6.Ramesh 7.Sabathana Devi 8.Ajitha Poomani 9.Sujitha Poomani (Appellants 2 to 9 are brought on record as legal heirs of the deceased sole appellant vide order dated 03.03.2014 made in M.P(MD)No.3 of 2013) .Appellants/ Defendants versus V.Mahalinga Reddiar .Respondent/ Plaintiff Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 29.10.2008 passed in Appeal Suit No.131 of 2006 by the Sub Court, Thoothukudi confirming the Judgment and decree dated 24.07.2006 passed in Original Suit No.41 of 2005 by the Additional District Munsif Court, Thoothukudi.
!For Appellants : Mr.H.Arumugam ^For Respondent : Mr.T.Lajapathi Roy JUDGMENT
The concurrent Judgments and decrees passed in Original Suit No.41 of 2005 by the Additional District Munsif Court, Thoothukudi and in Appeal Suit No.131 of 2006 by the Sub Court, Thoothukudi are being challenged in the present second appeal.
2.The respondent herein as plaintiff has instituted Original Suit No.41 of 2005 on the file of the trial Court for the reliefs of partition and separate possession of his half share in the suit properties, wherein the deceased fiRs.appellant has been shown as sole defendant.
3.In the plaint it is averred that both the plaintiff and defendant are brothers and both of them are having two more brothers by name Veerama Reddiar and Athilinga Reddiar.
The suit properties are the absolute properties of their parents namely Vaiyappa Reddiar and Avudaiyammal.
The plaintiff has served as a Building Inspector in Neyveli.
The plaintiff has used to come to suit village during holidays.
In the year 1975, the other brothers namely Veerama Reddiar and Athilinga Reddiar have taken their shares in the family properties and got separated.
In the year 1996, the plaintiff has asked the defendant to effect partition with regard to suit properties.
The defendant has refused to accede the demand made by the plaintiff and ultimately a legal notice dated 20.03.1997 has been issued to the defendant.
After receipt of the same, he has given a false reply notice.
Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
4.In the written statement filed on the side of the defendant, it is averred that the relationship mentioned in the plaint is correct.
In the year 1961, in the presence of some eldeRs.relatives a partition has takenplace, wherein a property which stands in the name of the plaintiff as well as a property which stands in the name of the defendant have been given to the share of the plaintiff.
The suit properties have been allotted to the share of the defendant.
It is false to aver that the plaintiff is having half share in all the suit properties.
The defendant has executed a sale deed dated 16.08.1961 in favour of the plaintiff.
Likewise, the plaintiff has sold a property in favour of the defendant by virtue of the sale deed dated 02.12.1981.
Apart from the said sale deeds, an agreement has come into existence on 07.12.1981 and therefore it is false to contend that the suit properties are common properties of both the plaintiff and defendant.
Since the defendant has had enjoyed the suit properties from the year 1961 by way of ousting the plaintiff, the defendant has acquired title to the suit properties by virtue of adveRs.possession.
There is no merit in the suit and the same deserves to be dismissed.
5.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed.
Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.131 of 2006 on the file of the fiRs.appellate Court.
6.The fiRs.appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court.
Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant.
7.At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration: a)Whether the Courts below are right in decreeing the suit filed by the respondent for partition, when he has recognized the right of the appellant under Ex.B.2 dated 07.12.1981?.
b)Whether the Courtsbelow are right in rejecting Ex.B.2 for its non- registration when the document recognized only the pre-existing right of the parties?.
c)Whether the Courts below are right in non-accepting the plea of ouster pleaded by the appellant when the respondent himself admitted that he was away from the suit property for more than 30 years?.
8.Before analysing the rival submissions made on either side, it would be apropos to perorate the following admitted facts.
It is an admitted fact that both the plaintiff and defendant are brothers and their father name is Vaiyappa Reddiar and mother name is Avudaiyammal.
It is also equally an admitted fact that both the plaintiff and defendant are having two more brothers namely Veerama Reddiar and Athilinga Reddiar and in the year 1975 both the Veerama Reddiar and Athilinga Reddiar have got separated from their family by way of getting their shares.
9.The specific case of the plaintiff is that the suit properties are the absolute properties of Vaiyappa Reddiar and his wife Avudaiyammal and in which the plaintiff is having half share and the remaining half share belongs to the defendant and since the defendant is not amenable for having amicable partition, the present suit has been instituted.
10.The contentions putforth on the side of the defendant are two fold.
The fiRs.and foremost contention is that in the year 1961, in the presence of some elders/relatives, an oral partition has takenplace, wherein the suit properties have been allotted to the share of the defendant and a property which stands in the name of the plaintiff and another property which stands in the name of the defendant have been allotted to the share of the plaintiff and subsequently two registered sale deeds have come into existence in between them and an agreement has also come into existence and therefore the plaintiff is not entitled to claim partition.
11.The second contention putforth on the side of the defendant is that from the year 1961, the defendant has become absolute owner of the suit properties and he has had enjoyed the same by way of ousting the plaintiff from the suit properties and thereby prescribed title to the same by adveRs.possession.
12.The Courts below have concurrently rejected the contentions putforth on the side of the defendant.
13.The learned counsel appearing for the appellants/defendants has advanced his argument in consonance with the averments made in the written statement.
14.As culled out earlier, the fiRs.and foremost contention putforth on the side of the appellants/defendants is that in the year 1961, an oral partition has been effected amongst the plaintiff and defendant in the presence of some elders/relatives, wherein the suit properties have been exclusively allotted to the share of the defendant.
15.The learned counsel appearing for the respondent/plaintiff has contended that the plea of oral partition alleged to have been takenplace in the year 1961 is nothing, but false and no substantial evidence has been let in so as to prove the same and further the Courts below have concurrently found the said aspect against the appellants/defendants and the same cannot be agitated in the second appeal and therefore the fiRs.contention putforth on the side of the appellant/defendant is liable to be rejected.
16.The entire case of the defendants/ appellants is based upon the alleged oral partition which has takenplace in the year 1961.
The said contention putforth on the side of the appellants/defendants is based upon Exs.B.1 and B.3.
Ex.B.1 is a sale deed, which stands in the name of the plaintiff, wherein an extent of 6 acres 40 cents of land has been sold.
Likewise, Ex.B.3 stands in the name of the defendant, wherein 3 acres 14 cents of land has been sold in favour of the defendant.
The contention putforth on the side of the appellants/defendants is that the property mentioned in Ex.B.1 stands in the name of the defendant and likewise the property mentioned in Ex.B.3 stands in the name of the plaintiff and in the year 1961, both the properties have been allotted to the share of the plaintiff.
It has already been pointed out that under Ex.B.1 an extent of 6.40 acres of land has been conveyed and likewise under Ex.B.3 an extent of 3.14 acres of land has been conveyed.
But the suit items 1 to 4 are more than that of the extent mentioned in Exs.B.1 and B.3.
Therefore the oral partition alleged to have takenplace in the year 1961 is nothing, but a make- believe affair.
Of couRs.it is true that for the purpose of proving the said aspect, on the side of the defendant D.W.2 has been examined.
Since some disparities are in existence as pointed out earlier, the evidence given by D.W.2 cannot be a sole basis for accepting the oral partition alleged to have been takenplace in the year 1961.
17.The second contention urged on the side of the appellants/defendants is that from the year 1961 all mutation proceedings have takenplace in favour of the defendant in respect of the suit properties and the defendant has had enjoyed the suit properties for more than a statutory period by way of ousting the plaintiff and thereby perfected title to the same by adveRs.possession.
18.The trial Court has not framed a specific issue with regard to the said aspect.
The fiRs.appellate Court while discussing the said aspect has given a specific finding to the effect that no document has been filed on the side of the defendant.
19.Even though such plea has been taken on the side of the appellants/defendants in the written statement, a bounden duty is cast upon the trial Court to frame a separate issue with regard to the said aspect.
But the trial Court has not done it.
Even the trial Court has not framed such an issue, this Court can decide the matter.
20.The learned counsel appearing for the appellants/defendants has contended with great vehemence that since 1961, the defendant as an absolute owner of the suit properties, has had enjoyed the same by way of ousting the plaintiff from the suit properties and thereby perfected title to the same by adveRs.possession.
At this juncture, it has to be borne in mind that both the plaintiff and defendant are brotheRs.The suit properties are the absolute properties of their parents.
21.It is true that due to avocation, the plaintiff has lived in Neyveli.
Considering the nature of relationship between the plaintiff and defendant and also considering the character of the suit properties, the Court cannot come to a conclusion that mere non-participation either in sharing profits or rendering physical assistance in cultivating the suit properties, would not be sufficient for coming to a conclusion that the defendant has ousted the plaintiff from the suit properties.
22.The learned counsel appearing for the appellants/defendants has drawn the attention of the Court to the decision in Kalyani (dead) by L.Rs.v.Narayanan and others reported in AIR1980Supreme Court 1173, wherein the Hon'ble Supreme Court has had an occasion to consider the legal position raised before it in case of disruption of joint family.
Under the said circumstances, the Hon'ble Apex Court has accepted the plea of ouster.
23.It has already been pointed out that the suit properties are the absolute properties of the parents of the plaintiff and defendant.
Under the said circumstances, question of joint family does not arise.
Since question of joint family does not arise so far as the suit properties are concerned, the dictum settled by the Hon'ble Apex Court in the decision referred to supra, is not applicable to the facts of the present case.
24.The learned counsel appearing for the appellant/defendant has also contended that after execution of Ex.B.3 a strained relationship has been in existence in between the plaintiff and defendant and that itself would be sufficient to come to a conclusion that the defendant has had enjoyed the suit properties absolutely by way of ousting the plaintiff and thereby he perfected title to the same by adveRs.possession.
25.In fact sufficient averments in the written statement have been mentioned with regard to transaction which has takenplace in the year 1981 in between the plaintiff and defendant.
The property which has been dealt with under Ex.B.3 is the separate property of the plaintiff and with regard to that aspect, some dispute has arisen between the plaintiff and defendant and that itself would not be sufficient for automatically coming to a conclusion to the effect that the defendant has had enjoyed the suit properties as an absolute owner by way of ousting the plaintiff.
Therefore viewing from any angle, the contentions raised on the side of the appellants/defendants are of no use.
26.The residual contention putforth on the side of the appellant/defendant is that item No.1 does not belong to mother of both the plaintiff and defendant and therefore the plaintiff is not at all entitled to get the reliefs sought for in the plaint.
In item No.1 of the suit properties, Survey No.141/3 is found place.
The said aspect has been raised on the basis of Ex.A.4.
Ex.A.4 is a certified copy of the Settlement Register, wherein it has been mentioned that Survey No.141/3 stands in the name of one Lakshmiammal.
But the said plea has not been taken in the written statement.
Even item No.1 does not belong to mother of both the plaintiff and defendant, the same can be set right at the time of passing final decree.
Therefore viewing from any angle, all the contentions raised on the side of the appellants/defendants are not having merits and further the substantial questions of law settled in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed.
27.In fine, this second appeal deserves dismissal and accordingly is dismissed without costs and the concurrent Judgments and decrees passed by the Courts below are confirmed.
Consequently, connected Miscellaneous Petition is dismissed.
To 1.The Sub Court, Thoothukudi.
2.The Additional District Munsif Court, Thoothukudi.