A.S.No.208 of 2013
and M.P.No.2 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
A.S.No.208 of 2013
and
M.P.No.2 of 2013
R.Sreedher ... Petitioner
..Vs..
1.Shanthi
2.Dhanabagiyam
3.Ravichandran
4.V.P.Raja
5.Rajeswari
6.Kalaichelvi
7.Veerasamy Naidu ... Respondents
PRAYER : First Appeal filed under Section 96 of C.P.C., against the fair
and decreetal order dated 17.12.2012 made in O.S.No.175 of 2007 on the
file of the II Additional District Judge, Salem.
For Petitioner : Ms.Chitra Sampath, Sr. Counsel
for Mr.R.Sunil Kumar
ORDER
The present appeal is filed against the decree and judgment dated 17.12.2012 made in O.S.No.175 of 2007 on the file of the II Additional District Judge, Salem.
https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013
2.The appellant is the seventh defendant in O.S.No.175 of 20078 on the file of the II Additional District Judge, Salem. The first respondent/plaintiff filed the said suit for partition of the suit properties into six equal shares and to allot one such share to the plaintiff.
3.The defendants 1 to 6 remained absent and were set ex parte and seventh defendant (appellant herein) alone contested the suit.
4.For the sake of convenience, the parties are referred to as per their ranking in the trial Court and in appropriate places, their rank in the present appeal would be indicated.
5.The plaintiff is the daughter of the first defendant and defendants 2 to 5 are her brothers and sisters. According to the plaintiff, the suit properties are the self-acquired properties of her late father V.P.Rangasamy and the defendants 1 to 3 sold suit Item No.1 of the suit property in favour of the third defendant through two registered sale deeds dated 22.01.2007 (Ex.A1 & Ex.A2) without informing her. According to her, the seventh defendant in fact was aware of the plaintiff's right over the suit properties and therefore, he cannot be termed https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013 as bonafide purchaser for value.
6.The seventh defendant resisted the suit on the following grounds :
1) He purchased only Item No.1 of the suit property from the defendants 1 to 3.
2) The plaintiff and the defendants 4 & 5 were married long back and they are living with their husbands separately and therefore, they do not have any share in the suit properties.
3) The defendants 1 to 3 were in continuous possession and enjoyment of the suit Item No.1 till they sold the property in favour of the plaintiff.
4) The defendants 3 to 5 and plaintiff have lost their right if any over the suit properties as the defendants 1 to 3 have perfected title by way of adverse possession and ouster.
7.The learned II Additional District Judge, Salem, framed the following issues :
1) Whether the plaintiff is entitled to 1/6th share in the suit properties?
2) Whether the plaintiff is ousted from claiming share in the suit https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013 properties?
3) Whether the plaintiff is entitled for the relief of partition and accounts prayed for?
4) To what relief, if any the plaintiff is entitled?
8.In the trial Court, the plaintiff examined herself and two other witnesses and marked Ex.A1 to Ex.A5. The seventh defendant examined himself as DW1 and marked Ex.B1 to Ex.B7.
9.After full contest, the learned II Additional District Judge, Salem, decreed the suit vide his decree and judgment dated 17.12.2012 in favour of the plaintiff and passed a preliminary decree for partition of the suit properties into six equal shares and to allot one such share to the plaintiff.
10.Aggrieved over the same, the seventh defendant had filed the present appeal.
https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013
11. The point that has to be considered in the instant appeal is that whether the adverse possession and ouster claimed by the seventh defendant is sustainable in law?
12.Heard Ms.Chitra Sampath, learned senior counsel assisted by Mr.R.Sunilkumar for the appellant.
13.Though notice was served on the respondents and their names are printed in the cause list, there is no representation on behalf of the respondents, either in person or through a counsel.
14.During the course of arguments Ms.Chitra Sampath, learned senior counsel appearing for the appellant did not press the claim of the seventh defendant as regards the adverse possession and ouster. It is fairly conceded by the learned senior counsel appearing for the appellant that the seventh defendant purchased the property only from the defendants 1 to 4 and 6 and that the plaintiff and the fifth defendant not party to the sale deeds Ex.A1 & Ex.A2.
https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013
15.The trial Court had extensively dealt with all the issues and held that the plaintiff is entitled to 1/6 share. All the observations made by the trial Court Judge is based on sound principles of law and therefore, no interference is warranted by this Court. However, the learned senior counsel appearing for the appellant contended that since the seventh defendant had purchased Item No.1 of the suit property long back and has been in possession of the same, the trial Court may be directed to consider the same at the time of passing of final decree and allot the property sold in favour of the seventh defendant to the share of his vendors on equity. This appears to be fair and the trial Court at the time of passing of final decree shall keep this in mind while passing final decree.
16.With above observations, the appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
14.09.2022 Index : Yes/No Internet : Yes/No mtl https://www.mhc.tn.gov.in/judis A.S.No.208 of 2013 and M.P.No.2 of 2013 R. HEMALATHA, J.
mtl To
1. The II Additional District Judge, Salem.
2. The Section Officer, V.R. Section, High Court, Madras.
A.S.No.208 of 2013 and M.P.No.2 of 2013 14.09.2022 https://www.mhc.tn.gov.in/judis