Madras High Court
Karuppikkan vs Marimuthu ... 1St on 5 August, 2021
1 S.A.(MD)NO.779 OF 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.779 of 2008 and
M.P.(MD)No.1 of 2008
Karuppikkan ... Appellant/Appellant/
1st Defendant
Vs.
1. Marimuthu ... 1st Respondent/1st Respondent/
Plaintiff
2. Karuppayee
3. Panchavarnam
(Respondents 2 and 3 are exparte before the trial Court
and the appellate Court and hence notice
need not be sent to them.)
... Respondents2&3/Respondents2&3/
Defendants 2 and 3
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow this second appeal and set aside the Judgment
and Decree dated 01.02.2008 made in A.S.No.74 of 2006 on
the file of the Sub Court, Paramakudi, confirming the
Judgment and Decree dated 26.07.2006 made in O.S.No.12 of
2004 on the file of the District Munsif cum Judicial Magistrate
Court, Kamuthi, Ramnad District.
For Appellant : Mr.G.Gomathi Sankar
For R-1 : Mr.S.Sivathilakar
For R-2 & R-3 : Exparte.
***
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2 S.A.(MD)NO.779 OF 2008
JUDGMENT
The first defendant in O.S.No.12 of 2004 on the file of
the District Munsif cum Judicial Magistrate, Kamuthi, is the
appellant in this second appeal.
2. The suit was for partition. The suit schedule items
1 to 9 originally belonged to Vellaisamy Konar. He died
leaving behind four sons, namely, Karuppaiya Konar,
Gurusamy Konar, Arumuga Konar and Amaravathy Konar and
one daughter, namely, Muthu Pillai. The parties to the present
appeal proceedings are the sons and daughters of Karuppaiya
Konar. Karuppaiya Konar married one Kanjirammai. Five
children, namely, Marimuthu, Karuppayee, Panchavarnam,
Vellammal and Meenal were born through the wedlock.
Karuppaiya Konar passed away in the year 1968. Kanjirammai
died in the year 1966. Claiming his share in the suit items
which belonged to the parents, the present suit for partition
came to be filed. The suit items 1 to 9 belonged to his father
Karuppaiya Konar, while the suit items 10 to 17 belonged to
his mother Kanjirammai. The case of the plaintiff
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3 S.A.(MD)NO.779 OF 2008
was that one sister by name Vellammal had got herself
separated way back in the year 1984 after she was allotted a
few items. Therefore, the property will have to be divided only
among the four heirs of Karuppaiya Konar and Kanjirammai.
Since the request for partition was not accepted, the suit came
to be laid.
3. The appellant Karuppikkan resisted the suit on the
ground that the oral partition had already taken place in the
year 1984 and that mutations have also been effected in the
revenue records. On behalf of the plaintiff, his wife and power
agent examined herself as P.W.1 and one Arumugam was also
examined as P.W.2. Final decree application in the partition
suit filed by the plaintiff was also marked. On the side of the
defendants, the appellant examined himself as D.W.1 and
Vadamalai examined himself as D.W.2. Ex.B.1 to Ex.B.10 were
marked. After a consideration of the evidence on record, the
trial Court passed preliminary decree holding that the plaintiff
is entitled to 5/12th share in suit items 1 to 9 and 1/4th share in
items 10 to 17 in the suit schedule properties.
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4 S.A.(MD)NO.779 OF 2008
4. Aggrieved by the same, the appellant filed
A.S.No.74 of 2006 before the Sub Court, Paramakudi. The first
appellate Court vide judgment and decree dated 01.02.2008
dismissed the appeal. Challenging the same, this second
appeal came to be filed.
5. The Courts below have concurrently rejected the
plea of oral partition put forth by the appellant. This is all the
more so because even according to the appellant, the suit
properties were part of the properties that originally belonged
to Vellaisamy Konar. If as claimed by the appellant the oral
partition took place in the year 1984 itself, Muthupillai would
not have filed the partition suit in the year 1995. In O.S.No.1
of 1995 filed by Muthupillai, the appellant was also a party.
That is why, the theory of oral partition put forth by the
appellant was rejected. On a question of fact, the Courts below
have concurrently found against the appellant. Since it has not
been shown to be perverse, I decline to interfere with the said
finding. No substantial question of law really arises for
consideration. The impugned judgment and decree passed by
the Court below is confirmed.
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5 S.A.(MD)NO.779 OF 2008
6. This second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
05.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Sub Judge,
Paramakudi.
2. The District Munsif cum Judicial Magistrate,
Kamuthi, Ramnad District.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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6 S.A.(MD)NO.779 OF 2008
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.779 of 2008
05.08.2021
https://www.mhc.tn.gov.in/judis/
