Madras High Court
Arulraj vs Subbulakshmi on 19 January, 2021
S.A.(MD)No.16 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.16 of 2021
and
C.M.P.(MD)No.125 of 2021
Arulraj Appellant
Vs.
1.Subbulakshmi
2.Jeyakodi
3.Chithirai Vel
4.Panneer Selvam
5.Periamuthu
Shanmugasundaram(Died)
6.Stella Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 14.10.2019 made
in A.S.No.102 of 2014 on the file of Sub Court, Valliyoor reversing the
judgment and decree dated 28.02.2014 made in O.S.No.182 of 2008, on
the file of Principal District Munsif Court, Valliyoor.
For Appellant :Mr.S.Sivathilakar
JUDGMENT
The plaintiff in O.S.No.182 of 2008, who was able to
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S.A.(MD)No.16 of 2021
convince the trial Court to decree the partition suit, upon its reversal by
the lower Appellate Court, has come up with this Second Appeal.
2.The plaintiff sued for partition contending that his father
had purchased an extent of 1.75 acres of land in Survey No.36/1A 1B at
Muthumothanmozhi Village, Radhapuram Taluk, Tirunelveli District,
under a sale deed dated 01.03.1955. The father of the plaintiff namely
Pauldurai Nadar sold an extent of 96 cents to one Vellapazham Nadar on
20.02.1969. Claiming that the property remained undivided, the plaintiff
would seek partition and separate possession of his 78 cents of land,
which remained at the hands of his father and after the death of his father,
the same was inherited by the plaintiff.
3.The Suit was resisted by the defendants contending that
the vendors of the plaintiff's father were not entitled to an extent of 1.75
acres in the suit survey number. The defendants would contend that the
vendors of the plaintiff's father were entitled to only 58 cents of land in
the suit survey number as they are entitled only 2/3rd share in the extent
of 88.11 cents purchased by three brothers on 09.04.1928. The
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S.A.(MD)No.16 of 2021
defendants would further contend that the sale deed executed by
Pauldurai Nadar in favour of Vellapazham Nadar dealt with specific
extent of property within four boundries and not an undivided property.
Therefore the suit for partition is ill-conceived.
4.At trial, the plaintiff was examined as PW 1 and two other
witnesses namely Raja Boopathy and Chithirai Murugesan were
examined as PW 2 and PW 3. Exs.A1 to A17 were marked. The husband
of the 6th defendant Muthu was examined as DW 1 and Exs.B1 to B9
were marked.
5.Upon consideration of the evidence on record, the learned
trial Judge agreed with the claim of the plaintiff and granted a decree for
partition. Aggrieved, the 6th defendant preferred an appeal in A.S.No.102
of 2014. Upon reconsideration of the evidence, the learned Subordinate
Judge, Valliyur has concluded that the plaintiff has not established that he
would be entitled to 79 cents of land in the suit survey number, after the
sale by his father in favour of one Vellapazham Nadar. The learned judge
has also concluded that Ex.A1 Sale deed conveyed a specific extent of
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S.A.(MD)No.16 of 2021
property within specific boundaries and therefore there is no question of
plaintiff being in joint possession with the defendants. With the above
said conclusion, the learned Appellate Judge reversed the findings of the
trial Court and dismissed the suit. Hence, this second appeal.
6.I have heard the learned counsel appearing for the
appellant. He would strenuously contend that the Appellate Court was
not right in reversing the well considered findings of the trial Court. He
would point out that one of the three brothers namely vendors of the
plaintiff's father had died as bachelor and therefore remaining two
brothers enjoyed the entire extent of 88.11 cents. It is further claimed that
the title of Pauldurai Nadar to an extent of 1.75 acres cannot be disposed
of, as he sold out 96 cents in favour of Vellapazham Nadar as early as in
the year 1969. The learned counsel would also further contend that the
Appellate Court was not right in reversing the findings of the trial Court
without considering the evidence in full.
7.I have considered the submissions of the learned counsel
for the appellant. The lower Appellate Court has rendered its specific
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S.A.(MD)No.16 of 2021
findings that the vendors of the plaintiff's father were not entitled to
entire 88.11 cents. It is a further finding of the Appellate Court that the
plaintiff is unable to establish the title of his father to the entire extent of
1.75 acres. The lower Appellate Court has also concluded that since the
description of the property in Ex.A1 Sale Deed is with specific
boundaries, the plaintiff cannot let in evidence against the contents of the
document and succeed on that basis.
8.Despite his best efforts, the learned counsel for the
appellant is unable to show that the above findings of the Appellate
Court could be termed as perverse. Since the plaintiff's father has sold
out a portion of the property in favour of Vellapazham Nadar as early as
in the year 1969, the very basis of the plaintiff's claim stands abrogated.
It is also seen from Ex.A1 Sale Deed executed by the plaintiff's father in
favour of Vellapazham Nadar that the entire property situate within four
specific boundaries has been sold. The learned counsel for the appellant
is unable to make out a question of law, much less a substantial question
of law in this appeal.
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S.A.(MD)No.16 of 2021
9.Accordingly, this second appeal is dismissed without
being admitted. No costs. Consequently, connected miscellaneous
petition is closed.
19.01.2021
Index : Yes/No
Internet: Yes/No
vrn
To
1.The Sub Court, Valliyoor
2.The Principal District Munsif Court, Valliyoor.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.16 of 2021
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD)No.16 of 2021
and
C.M.P.(MD)No.125 of 2021
19.01.2021
http://www.judis.nic.in
