Madras High Court
Elappa Naicker @ Periya Elappa ... vs C.Maheswari on 10 August, 2021
S.A.(MD)No.47 of 2014
BEFORE
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.47 of 2014
and
M.P.(MD)No.1 of 2014
Elappa Naicker @ Periya Elappa Naiker ... Appellant
Vs.
1.C.Maheswari
2.Chinna Elappa Naiker
3.S.Gopala Krishnasamy Naiker
4.K.Anandaalwar ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.15 of 2012 dated 20.06.2013
on the file of the learned Subordinate Judge, Kovilpatti, reversing the judgment
and decree passed in O.S.No.53 of 2009 dated 05.01.2011 on the file of the
learned District Munsif, Vilathikullam.
For Appellant : Mr.S.Pon Senthil Kumaran
For Respondents : Mr.Jothi Basu for R1
Mr.J.Bharathan
For Mr.J.R.Jeyapalan for R2
No appearance for R3 & R4
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S.A.(MD)No.47 of 2014
JUDGEMENT
The second defendant in O.S.No.53 of 2009 on the file of the District
Munsif Court, Vilathikulam is the appellant in this second appeal.
C.Maheswari/first respondent herein filed the said suit for partition and
separate possession of 89 cents of land in the suit property and also for
allotting 1/4th share in the well and pumpset located therein. The suit property
measures an extent of 3.78 Acres. According to the plaintiff, the suit property
was purchased by her grandfather namely., Sankarapa Naiker on 03.05.1970
under two sale deeds. Sankarapa Naiker had four sons namely., Periya Elappa
Naicker, Chinna Elappa Naiker, Gopala Krishnasamy Naiker and Perumalsamy
Naiker. The youngest son namely., Perumalsamy Naiker relinquished his
interest in the property in the year 1973. On 20.11.1975, Sankarapa Naiker and
his third son namely., Gopalsamy Naiker settled their share in the property in
favour of the fourth respondent/Anandaalwar, who is none other than the son of
Gopalsamy Naiker. As per the said settlement deed dated 20.11.1974, the
fourth defendant/Anandaalwar was entitled to 1 Acre 29 ½ cents. Sankarapa
Naiker passed away in the year 1979. Periya Elappa Naiker and Chinna Elappa
Naiker were enjoying the remaining extent of 2 Acres 49 ½ cents along with
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S.A.(MD)No.47 of 2014
pumpset, motor and other amenities in common. The plaintiff's father vide
settlement deed dated 14.11.2008 settled 89 cents of land in favour of the
plaintiff. At this stage, the plaintiff came to know that the appellant herein had
obtained patta in his favour in respect of 1.95 Acre of land illegally. Since
common enjoyment is giving rise to day-to-day quarrels, the plaintiff thought it
fit to seek formal partition through court process. Hence, she filed the said suit
arraying her father/Chinna Elappa Naiker as the first defendant, the appellant
herein as the second defendant, her uncle namely., Gopala Krishnasamy as the
third defendant and her cousin namely., Anandaalwar as the fourth defendant.
The defendants 1, 3 and 4 sailed with the plaintiff while the appellant herein
resisted the suit. The case of the appellant is that an oral partition had taken
place way back in the year 1974 itself and that therefore, the present suit for
partition is not maintainable. Based on the divergent pleadings, the trial Court
framed the necessary issues.
2.The plaintiff examined herself as P.W.1 and marked Exs.A1 to A6. The
first defendant examined himself as D.W.1, the third defendant examined
himself as D.W.3 and the appellant herein examined himself as D.W.2 and
marked Exs.B1 to B4.
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S.A.(MD)No.47 of 2014
3.After a consideration of the evidence on record, the trial Court by
judgment and decree dated 05.01.2011 dismissed the suit. Aggrieved by the
same, the plaintiff filed A.S.No.15 of 2012 before the Sub Court, Kovilpatti.
The first appellate Court by the impugned judgment and decree dated
20.06.2013 set aside the judgment and decree passed by the trial Court and
granted preliminary decree as prayed for. Challenging the same, this second
appeal came to be filed.
4.The second appeal was admitted on the following substantial questions
of law:-
“(a) Whether the 1st appellate Court is correct in granting
decree of partition, when the plaintiff in her evidence admitted
earlier partition?
(b) Whether the 1st appellate Court is justified in decreeing
the suit after holding that perusal of Ex.A3 shows that there was
a partition with respect to schedule properties?
(c) Whether the 1st appellate Court is correct in granting
1/4th right in well and pumpset when it was already allotted to
the share of the appellant and the same were situated in
S.No.305/1? and
(d) Whether the judgment and decree passed by the 1st
appellate Court is in conformity with Order 41 Rule 31 of CPC?”
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S.A.(MD)No.47 of 2014
5.The learned counsel for the appellant submitted that a mere reading of
the testimony of P.W.1 would show that she had admitted the prior partition
among the family members of Sankarapa Naiker. He also drew my attention to
Exs.A3, A4 and A6 for the purpose of contending that the suit property had
already been divided and that each of the brothers had been allotted separately.
He also would point out that the appellant's name had been entered in the
revenue records as evidenced by Exs.B3 and B4 and it can be seen therefrom
that the appellant was enjoying 1 Acre 76 cents of land. The appellant had also
dealt with what was allotted to him in the oral partition as evidenced by the
deed of mortgage dated 05.09.2007 (Ex.B6). He submitted that the trial Court
had correctly approached the issue and called upon this Court to answer the
substantial questions of law in favour of the appellant and restore the decision
of the trial Court.
6.Per contra, the learned counsel for the plaintiff/first respondent as well
as the other defendants/respondents 2 to 4 submitted that the impugned
judgment and decree passed by the first appellate Court do not call for any
interference. The learned counsel also submitted that it was the appellant who
had come out with the plea of oral partition; if that be so, the burden was only
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S.A.(MD)No.47 of 2014
on the appellant to prove the same. The learned counsel for the respondents
took me through the testimony of the appellant/D.W.2. The total extent of the
property is admittedly 3.78 Acres. Though the suit property was purchased by
Sankarapa Naiker, he chose to treat as a joint family property. Since Sankarapa
Naiker was having four sons, each of them would be entitled to 1/5th share in
the suit property. Sankarapa Naiker is no more and the youngest son namely.,
Perumal Samy Naiker had also given up his share in the suit property.
Gopalsamy Naiker along with his father settled his share in favour of his son
namely., Anandaalwar/fourth defendant. Thus as on date, there are only three
effective claimants. The learned counsel for the respondents would submit that
therefore it is only just and fair that the suit property which measures an extent
of 3.78 Acres is divided into three. Even though in the revenue records, the
appellant name is shown to be the owner of 1.78 Acres, patta is still joint and
separate patta had not been issued in the name of the appellant. Therefore, they
called upon this Court to sustain the impugned judgment and decree passed by
the first appellate Court and dismiss the second appeal.
7.I carefully considered the rival contentions and went through the
evidence on record.
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S.A.(MD)No.47 of 2014
8.The case of the plaintiff/first respondent is anchored entirely on the
deed of settlement dated 14.11.2008 (Ex.A4) executed by her father/Chinna
Elappa Naiker in her favour. Chinna Elappa Naiker settled 89 cents of land in
the suit property in favour of the plaintiff under the said document. It has been
described as the second schedule in Ex.A4. The four boundaries are given as
follows:-
“To the East of what was retained by the settlor
To the North of Ramasamy Naiker's land
To the West of Anandaalwar's land
To the South of Konar punjai.”
The settlor/first defendant had claimed that 89 cents of land allotted to the
plaintiff was out of 1.78 Acres of his land in S.No.305/2 and covered under
Patta No.90. In the plaint also, the plaintiff had claimed that following the said
settlement, she was in possession and enjoyment of the settled property. The
four boundaries given in Ex.A4 and the recitals thereof completely undermine
the case of the plaintiff.
9.The learned counsel for the respondents would now eloquently contend
that if Sanakarapa Naiker had only 3.78 Acres of land and there were as many
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S.A.(MD)No.47 of 2014
as four sons, it is improbable that the appellant can claim 1.78 Acres in the suit
property. I find considerable force in the said contention but then in Ex.A6, the
plaintiff's father had claimed that he is entitled to 1.78 Acres in the suit
property. If the plaintiff's father can claim entitlement over 1.78 Acres, the
appellant cannot be blamed for claiming 1.78 Acres of land. That is why, the
trial Court even though did not accept the plea of oral partition purforth by the
appellant, still chose to non-suit the plaintiff. The suit was filed in the year
2009. I am of the view that the very execution of the suit settlement
deed/Ex.A4 was for the purpose of filing the suit. If the brothers have a
legitimate dispute, the same should be resolved in a straight forward manner.
Without doing so, the first defendant/Chinna Elappa Naiker had attempted to
fire from the shoulders of his daughter. That is why, the trial Court dismissed
the suit. The first appellate Court without considering any of the reasons
assigned by the trial Court had mechanically allowed the appeal. As rightly
pointed out by the learned counsel for the appellant, in Ex.A3/settlement deed
dated 20.11.1975 executed by Sankarapa Naiker and Gopalsamy Naiker in
favour of Anandaalwar/fourth defendant, the following four boundaries are
found:-
“To the East of Chinna Elappa Naiker's share
To the West of Periya Elappa Naiker's share”
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S.A.(MD)No.47 of 2014
There are several such circumstances. Without taking note any of them, the
first appellate Court chose to allow the appeal. A careful perusal of the cross
examination of P.W.1 would show that in several places she had admitted that
there was prior partition. When even according to the plaintiff, there was prior
partition, she cannot maintain the suit for partition. The substantial questions
of law 1 and 2 are answered in favour of the appellant. There is no need to go
into other substantial questions of law.
10.In this view of the matter, the impugned judgment and decree is set
aside and the judgment and decree passed by the trial Court is restored. I make
it clear that no finding as regards the plea of oral partition putforth by the
appellant has been rendered. That issue is left open. The learned counsel for
the first defendant/Chinna Elappa Naiker may file a suit for partition. If such a
suit is filed, the same will be decided on merits and in accordance with law
without being influenced by the outcome of this appeal. No costs.
10.08.2021
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.47 of 2014
G.R.SWAMINATHAN, J.
ias
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 Court,
Kovilpatti.
2.The District Munsif Court,
Vilathikulam.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.47 of 2014
10.08.2021
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