Madras High Court
V.Durai vs V.Venkatesan on 10 December, 2021
C.R.P.(PD).No.2511 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.R.P.(PD).No.2511 of 2017
and
C.M.P.No.11861 of 2017
[Video Conferencing]
1.V.Durai
2.V.Varadan ... Petitioners/Defendants
vs.
V.Venkatesan ... Respondent/Plaintiff
Prayer:- This Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the Fair and Decreetal Order in I.A.No.593
of 2016 in O.S.No.17 of 2010 dated 14.11.2016, on the file of the Subordinate
Court, Kancheepuram.
For Petitioners : Mrs.V.Srimathi
For Respondent : No appearance
*****
ORDER
When this petition came up for hearing on 07.12.2021, there was no
representation for the respondent and this Court heard the submissions made
by the learned counsel for the petitioners and directed the matter to be posted
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C.R.P.(PD).No.2511 of 2017
on 10.12.2021, for hearing the respondent. Even today, i.e., 10.12.2021, there
is no representation for the respondent and hence this Court is inclined to pass
order on merits after hearing the counsel for the petitioners/defendants.
2.This Civil Revision Petition has been filed by the petitioners against
the order passed in I.A.No.593 of 2016 in O.S.No.17 of 2010 dated
14.11.2016, on the file of the Subordinate Court, Kancheepuram.
3.The facts of the case are that the petitioners herein are the
defendants and the respondent herein is the plaintiff in the suit in O.S.No.17
of 2010. The suit was filed for Preliminary Decree of partition against the
defendants for 1/3rd share in the suit properties, to divide the plaint schedule
mentioned properties into 3 equal shares and to allot one such share to the
plaintiff with regard to the good and bad soil by metes and bounds by
appointing an Advocate Commissioner in the final decree proceedings and
costs.
4.The petitioners herein have filed their written statement by denying the
averments in the plaint and also claimed that the properties were already
partitioned in between the petitioners and the respondent through Koorchit
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C.R.P.(PD).No.2511 of 2017
and sought for dismissal of the suit. To substantiate their claim, the
petitioners herein have also filed an application in I.A.No.593 of 2016 to
receive certain documents. The said application was allowed in part. Out of 7
documents sought to be marked the petitioners were allowed to mark 6
documents except the unregistered koorchit executed between the plaintiff
and the defendants. Aggrieved by the impugned order dated 14.11.2016, the
petitioners herein preferred this Civil Revision Petition.
5.It is the contention of the petitioners herein in their written
statement that the properties have already been partitioned. To substantiate the
same, the petitioners herein have filed I.A.No.593 of 2016, to receive 7
documents including an unregistered Koorchit executed between the plaintiff
and defendants dated 01.07.1998. The learned counsel for the petitioners
would submit that only based on the Koorchit, the parties are enjoying their
respective portions allotted to them and by referring the Koorchit several
other documents have been executed between the parties. But, the Trial Court
without considering the said fact, denied the rights of the petitioners in
marking Koorchit which is very essential and relevant document to prove the
contention of the petitioners that the properties have already been partitioned
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C.R.P.(PD).No.2511 of 2017
between the parties. The learned counsel for the petitioners also produced the
xerox copy of the Exchange Deed dated 27.02.1991 executed by the
defendants in favour of one Marimuthu Naicker, in which, the Koorchit has
been referred.
6.The learned counsel for the petitioners also would rely on the
Judgment made in Appeal Suit No.239 of 1945 and C.M.P.No.2490 of 1945,
dated 15.11.1946, wherein, it has been held that “when the document was
admissible to prove the adverse character of the defendant's possession of the
lands which were allotted to him under the Koorchit, though such allotment
was ineffectual for want of registration, it can be accepted.
7.In this case, the suit was filed by the respondent/plaintiff for a
preliminary decree of partition. It is the case of the respondent/plaintiff that
the properties, which are the subject matter of the suit, have not been divided
so far. It is also the definite case of the respondent/plaintiff that in spite of his
demand, the revision petitioners/defendants have not come forward for an
amicable partition of the suit property by metes and bounds. It is in those
circumstances, the suit was filed.
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C.R.P.(PD).No.2511 of 2017
8. On notice, the written statement was filed by the defendants. It is
the specific contention of the defendants that the suit properties were already
partitioned among the eligible heirs through an unregistered koorchit. It is the
further defence of the defendants that by placing reliance of the koorchit
several other documents have emanated among the parties and therefore they
have filed the instant application to mark certain documents in support of their
defence. One among the document is the koorchit which was relied on by the
defendants to buttress their contention that the suit properties have already
been partitioned. However, the application for reception of documents have
been partially allowed by the Trial Court. The main grievance of the revision
petitioner is that the koorchit is an important document to substantiate their
defence, however, the Trial Court refused to permit them to mark that
document. Therefore they are before this Court with this Civil Revision
Petition.
9.When it is the specific defence of the defendants that the suit
property has already been partitioned it is their burden to prove such assertion
by means of documentary evidence. The defendants also, to prove such
assertion, have filed the koorchit. It is also the specific defence of the
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C.R.P.(PD).No.2511 of 2017
defendants that the koorchit was also relied on while executing several other
consequential documents among the parties and therefore, the koorchit is very
much reliable. Merely because it is an unregistered document it cannot be
excluded from the purview of consideration, when this document would
strengthen the case of the revision petitioners to raise their defence in the suit.
The Trial Court instead of permitting the revision petitioners to mark the
koorchit refused to mark such document.
10.Further, in spite of notice the respondent has not come forward
before this Court to raise objections, if any, for marking the koorchit before
the Trial court. Having regard to the above, this Court has no hesitation to set
aside the order passed by the Trial Court.
11.Accordingly, the order passed by the Trial Court is set aside and
the revision petitioners are permitted to mark the koorchit. It is for the Trial
Court to consider the admissibility of the koorchit or its reliability at the time
of trial in the suit.
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C.R.P.(PD).No.2511 of 2017
12.Subject to the above observation, this Civil Revision Petition is
allowed. No costs. Consequently, the connected miscellaneous petition is
closed.
10.12.2021
ssi
Index:Yes/No
Internet:Yes/No
Speaking Order : Yes / No
To:
1.The Subordinate Judge,
Kancheepuram.
2.The Section Officer,
V.R. Section,
High Court of Madras.
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C.R.P.(PD).No.2511 of 2017
S.KANNAMMAL,J.
ssi
C.R.P.(PD).No.2511 of 2017
10.12.2021
https://www.mhc.tn.gov.in/judis
