Madras High Court
M.Dhandapani vs M.Kalimuthu on 18 January, 2021
S.A.(MD) No.13 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.13 of 2021 and
CMP(MD) No.120 of 2021
M.Dhandapani Appellant
Vs.
1.M.Kalimuthu
2.A.Samuthirammal
3.A.Konamari @ Marimuthu
4.A.Annadurai @ Vairamuthu
5.A.Sekar
6.A.Kumar
7.A.Muthammal
8.A.Palaniammal Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, against the judgment and decree passed in A.S.No.149 of 2018
dated 06.10.2020, to the file of Principal District Judge, Dindigul, confirming
the decree and Judgment in O.S.No.174 of 2012 dated 18.06.2018, on the file
of the Additional Subordinate Court, Dindigul.
For Appellant :Mr.N.Murugesan
JUDGMENT
The plaintiff in O.S.No.174 of 2012, whose suit for partition was
dismissed by the trial Court, upon confirmation of the same by the Appellate
Court, has come up with this Second Appeal.
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S.A.(MD) No.13 of 2021
2.The plaintiff sought for partition claiming that the suit property
belonged to the father of the plaintiff and defendants 1 & 2 and one
Marimuthu. It was claimed that the said Marimuthu executed a settlement deed
dated 26.06.1961, under which, he had settled the suit property to his second
wife Sundariammal, the plaintiff' and the 2nd defendant. The plaintiff would also
contend that there was a registered partition deed dated 25.03.1993. Claiming
that the partition deed was not acted upon, he had sought for partition and
separate possession of 1/3rd share.
3.The suit was resisted by the second defendant contending that
the partition deed dated 25.03.1993 is valid and acted upon. Therefore, the
plaintiff is not entitled to seek the relief of partition. It was also pointed out that
the property that was allotted to Arumugam/first defendant was not made the
subject matter of the present suit.
4.At trial, the plaintiff examined himself as PW.1 and two other
witnesses were examined as PW2 and PW3. Exs.A1 to A4 were marked.
Settlement Deed executed by the plaintiff in favour of his wife one Vijaya was
marked as Ex.B.1. Affidavit filed by the fourth defendant was marked as Ex.C.1.
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S.A.(MD) No.13 of 2021
5.The learned trial Judge, upon consideration of the evidence on
record concluded that the settlement deed executed by Marimuthu in the year
1961 is true and valid, as such, the first defendant is entitled to certain extent of
property, which is included in the suit. The learned trial judge also found that
the partition suit dated 25.03.1993 was acted upon and there was mutation of
revenue records pursuant to the said instrument. It is also pointed out that
though the plaintiff has sought for 1/3rd share, he had not chosen to include the
property, that was allotted to the first defendant. On the above findings, the trial
Court concluded that the plaintiff is not entitled to partition and on such
conclusion, the trial Court dismissed the suit.
6.Aggrieved, the plaintiff preferred an appeal in A.S.No.149 of
2018, on the file of the Principal District Court, Dindigul. The learned District
Judge, upon reconsideration of the evidence, concurred with the findings of the
trial Court and dismissed the appeal.
7.I have heard Mr. N.Murugesan, learned counsel for the appellant.
He would contend that though a certain extent of land was allotted under the
partition deed, the second defendant is in possession of larger extent and
therefore the partition cannot be said to have been acted upon. There is no
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S.A.(MD) No.13 of 2021
claim made in the suit. Further, the plaintiff had sought for 1/3rd share. But he
has not include the property that was allotted to Arumugam, under the partition
deed. This failure on the part of the plaintiff to include the property that was
allotted in Survey No.260/1, would affect his claim.
8. The Courts below have considered the evidence and concluded
that the plaintiff has not established the partition deed dated 25.03.1993, was
not acted upon. In the absence of proper evidence, Courts below were justified
in concluding that the partition deed dated 25.03.1993 was acted upon and
hence the plaintiff is not entitled to partition.
9. I do not see any perversity in the findings of the Courts below.
Despite his best efforts, the learned counsel for the appellant is unable to make
out any question of law, much less a substantial question of law in this appeal.
Accordingly, this second appeal is dismissed without being admitted. No costs.
Consequently, connected miscellaneous petition is closed.
18.01.2021
Index : Yes/No
Internet: Yes/No
vrn
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S.A.(MD) No.13 of 2021
To
1.The Principal District Court, Dindigul.
2.The Additional Subordinate Court, Dindigul.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.13 of 2021
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD)No.13 of 2021 and
CMP(MD) No.120 of 2021
Dated 18.01.2021
http://www.judis.nic.in
