Durai vs Rani Parasivam
2021 Latest Caselaw 24489 Mad

                                                                                        AS.No.517/2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 13.12.2021

                                                            CORAM:

                                      THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                         AS.No.517/2018

                                                         [Hybrid Mode]

                    Durai                                                             .. Appellant
                                                               Vs.

                    Rani Parasivam                                                    .. Respondent

                    Prayer:- Appeal Suit filed under Order 41 Rule 1 CPC to set aside the

                    judgment and decree dated 22.03.2018 passed in OS.No.186/2016 by the

                    learned IV Additional District Judge, Tiruvallur at Ponneri.


                                         For Appellant               :   Mr.R.Munuswamy

                                         For Respondent              :   Mr.R.Karunakaran

                                                          JUDGMENT

(1) The present Appeal Suit is directed against the judgment and decree

dated 22.03.2018 in OS.No.186/2016 on the file of the learned IV

Additional District Judge, Tiruvallur at Ponneri.

AS.No.517/2018

(2) The respondent herein as plaintiff, filed the suit in OS.No.186/2016

before the learned IV Additional District Judge, Tiruvallur at

Ponneri, for partition and separate possession of plaintiff's one-half

share in all the suit properties.

(3) The respondent herein is the elder sister of the appellant/defendant in

the suit. It is the case of the respondent/plaintiff that the father of

the plaintiff and defendant, namely Kuppusamy Reddy died intestate

on 04.09.1998 and that the plaintiff and the defendant are the only

legal heirs of the said Kuppusamy Reddy.

(4) It is the further case of the respondent/plaintiff that the entire suit

schedule properties along with the other properties were purchased

by her father Kuppusamy Reddy vide registered Sale Deed dated

30.08.1980. It is further stated that the said Kuppussamy Reddy

died intestate on 04.09.1998 leaving behind the plaintiff and the

defendant who are the daughter and son of the said Kuppusamy

Reddy.

(5) Though the appellant/defendant raised several issues in the written

statement, one of the contentions in the written statement is that the

father of the plaintiff and the defendant, even during his life time,

AS.No.517/2018

denied any share to the plaintiff and that the plaintiff therefore, had

not made any claim during the life time of her father. It is further

stated in the written statement that the appellant/defendant is in

exclusive possession and enjoyment of the property exercising all

rights of possession. Therefore, it was contended that the plaintiff

had lost her right by ouster.

(6) The Trial Court, after framing necessary issues, found that the suit

properties are the self acquired properties of the father of the

plaintiff and the defendant and that the plaintiff is entitled to half

share in all the properties. With regard to ouster, the Trial Court

gave a definite finding that the defendant has failed to establish that

his possession was in open assertion and denial of title to the

knowledge of the plaintiff. Aggrieved by the findings of the Trial

Court, the above Appeal Suit has been preferred by the defendant in

the suit.

(7) The learned counsel for the appellant/defendant though submitted

that the suit properties were purchased in the name of the

appellant/defendant's father by grandfather, he is unable to point out

any evidence to support his claim. When the properties stand in the

AS.No.517/2018

name of the appellant's father, the burden lies on the

appellant/defendant to prove that there was existence of joint family

property prior to the purchase and that the property acquired by his

father was out of the income derived from such joint family property

or can be characterised as joint family property by other means.

(8) The law is settled that there is no presumption of existence of any

joint family property. In this case, the appellant/defendant has not

even pleaded availability of any other property which can be

characterised as joint family property in the hands of the defendant's

father. No evidence was let in to show that the grandfather had

acquired the property by joint family income. This Court is unable to

appreciate the first contention of the learned counsel for the

appellant/defendant.

(9) Secondly, the plea of ouster should be specific to establish that the

defendant/appellant herein is in enjoyment of the property

exclusively and that his possession and enjoyment is long and

continuous to the knowledge and exclusion of the respondent. In the

written statement, as regards the plea of ouster, it is not indicated

how he had asserted ouster. Merely because the appellant/defendant

AS.No.517/2018

is in physical possession of the property, it cannot be said that his

possession is open and in denial of the plaintiff's/respondent's right

of co-ownership. No instance of ouster is pleaded nor proved.

(10) The findings of the Trial Court on this issue is supported by reasons.

This Court is unable to find any error or illegality in the findings of

the Lower Court.

(11) In the result, the Appeal Suit is dismissed confirming the judgment

and decree dated 22.03.2018 passed in OS.No.186/2016 by the

learned IV Additional District Judge, Tiruvallur at Ponneri. No

costs. Consequently, connected miscellaneous petition is closed.

13.12.2021 AP Internet : Yes

To

1.IV Additional District Judge, Tiruvallur at Ponneri.

2.The Section Officer, VR Section, High Court, Chennai.

AS.No.517/2018

S.S.SUNDAR, J.,

AP

AS.No.517/2018

13.12.2021

https://www.mhc.tn.gov.in/judis 6