Madras High Court
R.Ramasamy vs Appavu @ Rengasamy on 20 December, 2021
S.A(MD)No.663 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.663 of 2020
and
C.M.P(MD)No.7059 of 2020
R.Ramasamy ... Appellant/Appellant/Defendant
Vs.
Appavu @ Rengasamy ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 17.03.2020 passed
in A.S.No.29 of 2019, on the file of the Subordinate Court, Manapparai,
confirming the judgment and decree dated 06.11.2019 passed in
O.S.No.426 of 2014 on the file of the Additional District Munsif Court,
Manapparai.
For Appellant : Mr.A.Haja Mohideen
For Respondent : Mr.Raguvaran Gopalan
for Mr.K.Prabhakar
1/21
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S.A(MD)No.663 of 2020
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.426 of
2014 by the Additional District Munsif Court, Manapparai and in
A.S.No.29 of 2019, by the Subordinate Court, Manapparai, are being
challenged in the present Second Appeal.
2. The respondent/plaintiff has instituted a suit in O.S.No.426 of
2014 on the file of the trial Court for the relief of permanent injunction
and to restrain the defendant, his men, agents and servant and all
persons claiming through or under them from interfering with the
plaintiff's peaceful possession and enjoyment of the suit 'A' schedule
property either by trespassing into the suit 'A' schedule property or in
any manner whatsoever and for declaration that the plaintiff is entitled
to exercise free ingress and egress into the suit 'B' schedule property
and right to use the motor pump set erected in the Well in the suit 'B'
schedule property, wherein, the present appellant has been shown as
defendant.
3. The case of the plaintiff is that the suit properties and other
properties are the ancestral joint family properties and subsequently
acquired out of the joint family nucleus. One Narayanasamy had two
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S.A(MD)No.663 of 2020
sons, namely, Ramasamy and Nallusamy and they were in possession
and enjoyment of the entire properties. After his demise, the said
Ramasamy, who is the father of the plaintiff, defendant, Lavunga Reddy
and Ponnusamy and Nallusamy were in possession and enjoyment of
the suit properties. The sons of Ramasamy and Nallusamy divided the
entire joint family properties. In the partition, the land measuring an
extent of 3 acres and 26 cents in Survey No.154/4 in Palayamkottai
was allotted to the share of the plaintiff, Lavunga Reddy and Nallusamy
and the lands in Inamrettiyapatti was allotted to the share of the
defendant, Ponnusamy and Nallusamy. As per the said partition, the
suit old S.F.No.154/4 was sub-divided into S.F.Nos.154/4A-Lavunga
Reddy, 154/4B-suit 'A' schedule property, 154/4C-suit 'B' schedule
property and 154/4D-Nallusamy. The suit 'A' schedule property
described as S.F.No.154/4B was allotted to the share of the plaintiff,
who was in possession and enjoyment of the same and also suit 'B'
schedule property described as S.F.No.154/4C with other co-sharers
are entitled to use motor pump set erected in the said property, which
is in joint possession of all the brothers. When the plaintiff has taken
steps to demarcate the suit properties with the help of revenue
officials, the defendant has raised an objection and resisted the
measurement of the suit properties. The defendant has also tried to
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S.A(MD)No.663 of 2020
trespass and interfere with the plaintiff's peaceful possession and
enjoyment of the suit properties. The plaintiff further submits that the
suit 'A' schedule property belongs to him and it was allotted to him in
partition and the plaintiff has ingress and egress right and right to use
the motor pump set in the suit 'B' schedule property and the defendant
interfered with the said rights of the plaintiff. Hence, the plaintiff left
with no other alternative remedy, has filed the suit.
4. The defendant filed a written statement denying all the
averments made in the plaint and submitted that the plaintiff has no
manner of exclusive right, title and possession over the suit properties
and the suit properties are undivided Hindu Joint family properties. The
defendant claimed that the plaintiff has not filed appropriate genealogy
list. The defendant has also intended to file a suit for partition in
respect of the suit properties. The defendant claimed that he was
enjoying the suit properties along with others in common and further
denied that the defendant was not interfering with the possession and
enjoyment of the suit properties, but, only the plaintiff was interfering
with the possession and enjoyment of the suit properties and removed
the bund between the properties with the help of the Tractor. The
plaintiff has not proved that his name is Appavu @ Rengasamy and the
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S.A(MD)No.663 of 2020
cause of action for the suit does not arise and the suit for permanent
injunction without the relief of partition, the properties were undivided
cannot be maintained.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and one Rengaraj was examined as P.W.2
and Exs.A1 to A12 were marked. On the side of the defendant, the
defendant examined himself as D.W.1 and Exs.B.1 to B.11 were
marked and also Ex.C.1 to Ex.C.3 were marked.
6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has decreed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant, as appellant, had filed an Appeal Suit in
A.S.No.29 of 2014. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
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S.A(MD)No.663 of 2020
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant, as appellant.
9. The learned counsel appearing for the appellant/defendant
would submit that the case of the plaintiff is that the heirs of Ramasmy
and Nallusamy had orally partitioned the entire properties in S.F.No.
154/4 measuring an extent of 3.26 cents situated in Palayamkottai
Village was allotted to the plaintiff, Lavunga Reddy and Nallusamy, the
property situated in the Village of Inamrettiyapatti were allotted to the
share of the defendant, Ponnusamy and Nallusamy, but he failed to
prove the same through documentary and oral evidence. Ex.A.4-Kist
receipt, dated 25.04.1994 stands in the name of Appavu Reddy and
the kist receipt, dated 26.03.2002 stands in the name of Appavu @
Rengasamy and that will not be sufficient to prove the right, title and
interest of the plaintiff in the suit properties. Ex.A.7-rough sketch is
without any measurement and boundaries and there is no mentioning
about the electric motor pump set and service connection and the
same is not acceptable. Ex.A8 to Ex.A.10 are not sufficient enough to
prove the partition of the properties of the plaintiff and the defendant
father Ramasamy and there is no specific mentioning about the
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S.A(MD)No.663 of 2020
partition of properties of Survey No.154/4 ie., the suit properties and
other properties. The first Appellate Court had erroneously held that
the plaintiff having a common right in the suit 'B' schedule property, in
the absence of proof for the cultivation of the suit 'A' schedule
property, prayed for allowing the Second Appeal.
10. The learned counsel appearing for the respondent/plaintiff
would submit that the defendant has admitted that the property
originally belonged to Ramasamy and Nallusamy. In his cross-
examination, as D.W.1, has admitted that the oral partition and division
of shares and he has also admitted the allotment of land to him.
Further, in oral evidence, he has admitted that separate patta have
been issued to all brothers subsequent to oral partition. The Courts
below have relied on Ex.A.1-patta and Ex.A.11-patta pass book to
conclude that the plaintiff was in possession of the suit 'A' schedule
property and also relied on Ex.A.8 to Ex.A.10-sale deeds. With respect
to the dispute in the name of the plaintiff - Appavu @ Rengasamy, the
Courts below have concurrently relied on Ex.A.5-reply notice of the
defendant, wherein, Appavu @ Rengasamy has been accepted by the
defendant. With respect to right of ingress and egress to the suit 'B'
schedule property, the Courts below have concurrently relied on Ex.A.
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11-patta pass book, which shows that suit 'B' schedule Survey No.
154/4C to be in joint patta and also on Ex.C.1 to Ex.C.3 and evidence
of D.W.1 that water from Survey No.154/4C is taken to Survey No.
154/4B via channel and submitted that there is no legal infirmity in the
judgments and decrees of the Courts below and prayed for dismissal of
the Second Appeal.
11. In support of his contention, the learned counsel appearing
for the respondent/plaintiff relied on the following Judgments:-
(i) In Digambar Adhar Patil Vs. Devram Girdhal Patil [1995
Supp (2) SCC 428], wherein, it has been held as follows:-
"5. We find no force in the contention. Section 32B
clearly postulates that the land held as an owner or as a
tenant alone should be taken into consideration to
determine ceiling limit and if the land held as owner or
tenant is within the ceiling limit, he shall be entitled to
purchase the land held by him as a tenant. Admittedly, the
respondent held the land as an owner to the extent of 36
acres 1 guntas. The area of dispute is only in respect of the
land held by his minor son and the land allotted at a
partition to his brother Ram Chander. With regard to the
land held by the son, even assuming that it is a joint family
property for the purpose of the Act and it is incuudible in
his holding yet he is within the ceiling limit, namely, 43
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acres 35 guntas. As rightly held by the High Court he
cultivated it on behalf of his minor son. As to the land
allotted to the brother of the respondent, the Tribunals
below negatived it on two grounds, namely, in the
cultivation column of the Revenue records, it was shown
that the respondent had cultivated the land and no
documentary evidence of partition was produced before the
authorities. The Tribunals below did not advert to the
entries in the Record of Rights or to the factum of partition,
while the High Court has taken this factor into
consideration, which in our considered view had rightly
been taken into account. The entries in the Record of
Rights regarding the factum of partition is a relevant piece
of documentary evidence in support of the oral evidence
given, by the respondent and his brother to prove the
factum of partition. Even in the evidence of Ram Chander,
he dearly stated that there was a partition but he could not
give the date and year in which the partition was effected
nor the deed of the partition was produced. Under the
Hindu Law, it is not necessary that the partition should be
effected by a registered partition deed. Even a family
arrangement is enough to effectuate the partition between
coparceners and to confer right to a separate share and
enjoyment thereof. Under those circumstances, when the
factum of partition was evidenced by entries in the Record
of Rights, which was maintained in official course of
business, the correctness thereof was not questioned, it
corroborates the oral evidence given by the brother and
lends assurance to accept it.
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S.A(MD)No.663 of 2020
6.The High Court, therefore, was right in its
conclusion that the land allotted to the brother of the
respondent, namely, Ram Chander should be excluded. If
that land is excluded necessary conclusion is that the
respon- dent was within the ceiling limit. Consequently, he
is entitled to purchase the land of the appellant who is the
owner under the provisions of the Act as he is a deemed
tenant on the tiller date under s32 of the Act. Whether the
respondent is in excess of the land or not would be
considered while computing the holding as ordered by the
High Court in its remand order. The appeal, therefore, does
not warrant interference. It is accordingly dismissed."
(ii) In Kesharbal Vs. Tarabai [ 2014 (4) SCC 707], wherein, it
has been held as follows:-
"21.In our opinion, the aforesaid presumption is
wrong in law in view of the fact that the High Court has
affirmed the findings of the trial court that in 1985, there
was a complete partition and the parties had acted on
the same. It is a settled principle of law that once a
partition in the sense of division of right, title or status is
proved or admitted, the presumption is that all joint
property was partitioned or divided. Undoubtedly the
joint and undivided family being the normal condition of
a Hindu family, it is usually presumed, until the contrary
is proved, that every Hindu family is joint and undivided
and all its property is joint. This presumption, however,
cannot be made once a partition (of status or property),
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whether general or partial, is shown to have taken place
in a family. This proposition of law has been applied by
this court in a number of cases. We may notice here the
judgment of this Court in Bhagwati Prasad Sah & Ors.
Vs. Dulhin Rameshwari Kuer & Anr.[1], wherein it was
inter alia observed as under:
“8. Before we discuss the evidence on the record,
we desire to point out that on the admitted facts of this
case neither party has any presumption on his side
either as regards jointness or separation of the family.
The general principle undoubtedly is that a Hindu family
is presumed to be joint unless the contrary is proved,
but where it is admitted that one of the coparceners did
separate himself from the other members of the joint
family and had his share in the joint property partitioned
off for him, there is no presumption that the rest of the
coparceners continued to be joint. There is no
presumption on the other side too that because one
member of the family separated himself, there has been
separation with regard to all. It would be a question of
fact to be determined in each case upon the evidence
relating to the intention of the parties whether there was
a separation amongst the other co-parceners or that
they remained united. The burden would undoubtedly lie
on the party who asserts the existence of a particular
state of things on the basis of which he claims relief.”
This principle has been reiterated by this Court in
Addagada Raghavamma & Anr. Vs. Addagada
Chenchamma & Anr.[2]
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22. In this case, the trial court as well as the High
Court has held that there was a complete partition in the
year 1985. Therefore, the presumption would be that
there was complete partition of all the properties.
Consequently, the burden of proof that certain property
was excluded from the partition would be on the party
that alleges the same to be joint property. Therefore, in
our opinion, the High Court clearly committed an error in
placing the burden of proof on the petitioners, who were
defendants in the suit to prove that the Nageshwarwadi
property at Aurangabad was a self-acquired property of
Eknathrao."
12. Heard the learned counsel for the appellant and the learned
counsel for the respondent and also perused the records carefully.
13. It is the contention of the plaintiff that the suit 'A' schedule
property belongs to the plaintiff and it was allotted to him in partition.
The plaintiff had ingress and egress right and right to use motor
pumpset in 'B' schedule property. The plaintiff has also claimed that old
S.F.No.154/4 was partitioned among him and his two other brothers,
namely Lavunga Reddy and Ponnusamy. It is the contention of the
defendant that the suit properties were not at all partitioned and it was
not allotted to the plaintiff. The defendant has also disputed that the
plaintiff has no other name as Appavu.
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S.A(MD)No.663 of 2020
14. The plaintiff has marked the computer patta and kist receipts
for suit 'A' schedule property, which were marked as Ex.A.1 and Ex.A.4
and the patta pass book stands in the name of the plaintiff was marked
as Ex.A.11. A perusal of Ex.A.1-patta and Ex.A.11-patta passbook
shows that the plaintiff has a separate and exclusive right over the suit
'A' schedule property. The main contention of the defendant is that the
plaintiff has no other name as Appavu. In Ex.A.1-patta and Ex.A.4-kist
receipts, the name of Appavu Reddy, son of Ramasamy Reddy was
mentioned, whereas, in Ex.A.11, the name is mentioned as Appavu @
Rengasamy and the plaintiff has another name as Appavu. The notice
issued by the Tahsildar was marked as Ex.A.3 and the legal notice
issued by the defendant to the plaintiff and the Tahsildar was marked
as Ex.A.5. In Ex.A.3 notice, the plaintiff's name has been mentioned as
Appavu @ Rengasamy and in Ex.A.5-legal notice, the defendant
himself has mentioned the name of the plaintiff as Appavu. The
defendant has admitted the issuance of Ex.A.5-legal notice to the
plaintiff in his written statement.
15. The defendant claimed that there was no partition of the suit
properties. To prove the partition, the plaintiff has marked the sale
deeds executed by the defendant and Lavunga Reddiar, one of the
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S.A(MD)No.663 of 2020
brother, which were marked as Ex.A.8 to Ex.A.10. On going through
the documents, it is found that the defendant has executed a sale deed
in favour of one Indira Devi on 10.06.1987, wherein, it has been
conveyed that the properties were allotted to him by partition and in
Ex.A.9, the defendant along with his son and daughters had sold some
properties in favour of Lavunga Reddiyar on 22.04.2016 by mentioning
the partition of properties among themselves. The defendant himself
has purchased the properties allotted to Lavunga Reddiyar in partition
on 22.04.2016 through Ex.A.10-sale deed. Hence, the above said
documents would prove that the properties were already partitioned
among the plaintiff, defendant and his brothers. A separate patta was
issued in the name of the plaintiff which was established through
Ex.A.1 and Ex.A.11, which clearly contemplates that the suit 'A'
schedule property was allotted to the share of the plaintiff.
16. The plaintiff has claimed right to ingress and egress and the
right to use motor pumpset in Well in suit 'B' schedule of the property.
The plaintiff's name was also included in Ex.A.2-patta along with the
defendant's name. In Ex.A.11-patta pass book, it is mentioned that the
plaintiff has joint ownership over the suit 'B' schedule property along
with the defendant. The Commissioner's report and plan shows that
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there is a Well in the suit 'B' schedule property and a channel runs
through suit 'B' schedule property to suit 'A' schedule property. Based
on the Advocate Commissioner's report and plan, the trial Court has
come to the conclusion that the plaintiff has proved his possession and
enjoyment over the suit 'A' schedule property and the suit 'B' schedule
property with appropriate evidence and decreed the suit as prayed for.
The trial Court has further come to the conclusion that the claim of
possession regarding Survey No.154/4B and the kist receipts and
pre-suit notice also proves that the plaintiff has been addressed as
Appavu @ Rengasamy and the defendant cannot raise all these issues
without any appropriate evidence and the same was also negatived by
the trial Court and the first Appellate Court, holding that there was a
family partition even before 1987 by way of registered document and
also in cross-examination, the defendant himself has admitted that
there was a partition among themselves and the brothers have
purchased the properties and sold the properties. As the water channel
was in existence from 'B' schedule property to 'A' schedule property
establishing the title in usage of the ingress and egress right by the
plaintiff and decreed the suit.
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17. The first Appellate Court has also confirmed the Judgment
and Decree of the trial Court on consideration of all the relevant
documents and oral evidence that the application in I.A.No.3 of 2019
filed by the defendant for production and acceptance of 8 additional
documents under Order 41 Rule 27 C.P.C was rejected. Except the
second document, all other documents were rejected, as they do not
pertains any relation to Survey Nos.154/4B or 154/4C. The second
document was the original sale deed under which their father
Ramasamy and Nallusamy have purchased the properties. Since the
original title of Ramasamy and Nallusamy had been accepted by the
parties, the document was rejected is not relevant.
18. The first Appellate Court has also considered the oral
evidence of D.W.1, who has admitted in the cross-examination, that
the plaintiff is his brother and the properties were divided as early as in
the year 1967 and he has been allotted shares in Inamrettiyapatti
lands and Survey No.154 was sub-divided and separate patta was
issued and they are in possession and enjoyment of the same and the
defendant has also admitted that he purchased the divided share of his
brother Lavunga Reddy and the existence of a Well in Survey
No.154/4C and water is drawn through a channel for Survey
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Nos.154/4C to 154/4B and the same was also considered. The first
Appellate Court has come to the conclusion that the burden of proving
that one of the properties of the family was joint when all others
properties are divided would be on person asserting the same. The first
Appellate Court also held that the defendant, who asserts that the suit
properties alone were joint had discharged his burden. The first
Appellate Court has also relied on the Supreme Court decision and held
that the patta had been issued based on an oral partition and the
genuineness of the same has not been questioned, when oral partition
is confirmed. The first Appellate Court also confirmed that Ex.A.5 would
show that the plaintiff's name is known as Appavu @ Rengasamy.
19. The grounds raised by the learned counsel appearing for the
appellant/defendant do no make out a case prima facie for interfering
with the concurrent findings of the trial Court as well as the first
Appellate Court, when the defendant has admitted that the property
originally belonged to Ramasamy and Nallusamy and oral partition was
admitted by the defendant and the division of shares was also admitted
and separate patta has been issued to all the brothers subsequent to
the oral partition and based on the same, there was also sale of lands
between the brothers, who have also admitted that there was an oral
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partition. Ex.A.1-patta and Ex.A.11-patta pass book would show that
the plaintiff is in possession of the suit 'A' schedule property and Ex.A.1
and Ex.A.11 has not been objected to by the defendant and the entry
in the record of rights or revenue records, the correctness of which is
not questioned in evidence or oral partition. The first Appellate Court
also relied on the sale deeds, namely Ex.A.8 to Ex.A.10, wherein, the
defendant has sold some of the properties. Under Ex.A.10, the
defendant had purchased the properties from his brother Lavunga
Reddy and all these documents would prove that there was already a
family partition, which is a oral partition, which has been accepted and
acted upon by the defendant and other brothers. The claim of the
defendant that the suit properties alone has not been divided, the
burden to prove the same is on the person claiming, one property as
joint family properties when admitted that all the other properties are
divided. As the defendant has not proved the same by letting any
substantial evidence to prove that the suit properties are not
partitioned. The Advocate Commissioner's report would clarify and
prove that water has been taken from the Well in Survey No.154/4C to
Survey No.154/4B through a channel and further, both the Courts
below have rightly come to the conclusion that the plaintiff has proved
his case beyond doubt and the defendant has failed to prove his case
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by letting in appropriate evidence either orally or documentary. The
oral evidence of D.W.1 was accepted and the portion of the said
admission was also incorporated in the Judgment and Decree of the
trial Court as well as the first Appellate Court, this Court is of the view
that the defendant has not made out any case and noquestion of law,
much less the substantial question of law to be decided by this Court in
this appeal.
20. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/defendant to interfere with the well considered judgment and
decree rendered by the Courts below and accordingly, the Second
Appeal fails and the same stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
20.12.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.663 of 2020
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 Subordinate Court,
Manapparai.
2.The Additional District Munsif Court,
Manapparai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.663 of 2020
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.663 of 2020
20.12.2021
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