Madras High Court

Selvaraj (Died) vs S.Paulraj on 27 July, 2021

S.A.(MD)No.375 of 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 27.07.2021

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.375 of 2014
and
M.P.(MD).No.1 of 2014
1. Selvaraj (died)
2. Martin Manoharan
3. Rose Mary
4. Devid Chelladurai
5. Christhu Raja ... Appellants
(Appellants 3 to 5 are suo motu
impleaded vide Court order
dated 27.07.2021 by GRSJ)
Vs.
1. S.Paulraj
2. Dorathy Paulraj
3. Vasantharani
4. Kala
5. Joy ... Respondents

Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgement and Decree made in A.S.No.229 of 2004 dated
20.07.2010 on the file of the Additional Subordinate Judge, Dindigul
confirming the Judgment and Decree made in O.S.No.124 of 2001 dated
24.01.2003 on the file of the First Additional District Munsif Court, Dindigul.

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S.A.(MD)No.375 of 2014

For Appellants : Mr.M.Thirunavukarasu
For Respondents : Mr. S.Sarvagan Prabhu
For R2 to R5.
R1 – Died.

JUDGMENT

The defendants in O.S.No.124 of 2001 on the file of the First Additional

District Munsif, Dindigul are the appellants in this Second Appeal. The suit

was for partition. It was filed by one Paulraj and his wife against one Selvaraj

and Martin Manoharan. The father of the defendants namely, Chelladurai was

the elder brother of Paulraj/first plaintiff. According to the plaintiffs, the suit

property belonged to Janaki ammal, the mother of Paulraj and Chelladurai. The

suit property was settled in her favour by one Savariappan on 07.06.1919

(Ex.A2). Janaki ammal died later. Thereafter, the suit property devolved on her

sons namely, Chelladurai and Paulraj.

2.According to the plaintiffs, there was an oral partition between them

and half share in the suit property was allotted to the plaintiff/Paulraj. Since

he was employed out of the district, he leased out what was allotted to him to

his brother Chelladurai. Chelladurai passed away in the year 1984.

Thereafter, the sons of Chelladurai/the defendants were in enjoyment of the suit

property. Under these circumstances, the plaintiffs issued a legal notice dated

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S.A.(MD)No.375 of 2014

30.03.2000 (Ex.A1). The defendants did not comply with the demand set out in

the suit notice. Hence, the plaintiffs filed a suit in O.S.No.124/2021 seeking the

relief of partition and seperate possesion of their share in the suit property.

3.The defendants filed their written statement resisting the suit claim.

According to the defendants, the suit is not maintainable. If at all the plaintiffs

can only seek the relief of recovery of possession. They further contended that

their father Chelladurai had obtained patta in his name and that the suit

property is their absolute property. The revenue records reflect only the name

of Chelladurai for several decades. The defendants sought dismissal of the

suit.

4.Based on the rival pleadings, the trial Court framed the necessary

issues. The second plaintiff examined herself as PW1 and one Antony was

examined as PW2. Exs.A1 to A4 were marked. The first defendant Selvaraj

examined himself as DW1 and Exs.B1 to B38 were marked.

5.After consideration of the evidence on record, the trial Court passed a

preliminary decree granting half share in the suit property in favour of the

plaintiffs. Aggrieved by the same, the defendants filed A.S.No.229 of 2004

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S.A.(MD)No.375 of 2014

before the Additional Sub-Court, Dindigul. By the impugned judgment and

decree, dated 20.07.2010, the appeal was dismissed and the decision of the trial

Court was confirmed. Challenging the same, the Second Appeal came to be

filed.

6.The Second Appeal was admitted on the following substantial

questions of law:

“i) Whether the mutation in revenue records will confer title to the defendants 1 and 2 or not?

ii) Whether the plaintiffs are estopped from claiming title to the suit property?”

7.The learned counsel appearing for the appellants reiterated all the

contentions set out in the memorandum of grounds. He pointed out that the

plaintiffs marked Ex.A3 claiming that they had leased out the suit property,

which was allotted to their father and that the defendants, who are the sons of

Chelladurai are only lease-holders. Therefore, they are clearly estopped from

making a further claim for partition. He would also state that Ex.A2 settlement

deed executed in favour of Janaki ammal contained number of properties. The

suit property was one among the several items. The plaintiffs choose to remain

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S.A.(MD)No.375 of 2014

silent in respect of the other items ; only in respect of the suit items, they filed

the present suit. He submitted that unless all the properties belonging to the

joint family are included in the suit schedule, a suit for partition cannot be

maintained. He also faulted the decision of the trial Court for failing to discuss

the contentions advanced by the defendants. He called upon this Court to

answer the substantial questions of law in favour of the appellants, to set aside

the impugned judgments and decrees and to dismiss the suit.

8.Per contra, the learned counsel appearing for the respondents submitted

that the impugned judgment does not call for any interference.

9.I carefully considered the rival contentions and went through the

evidence on record.

10.The specific case of the plaintiff is that the suit property was settled in

favour of Janaki ammal vide Ex.A2 dated 07.06.1919. The original document

has also been marked before the Court. The contention advanced by the

defendants before the trial court was that in Ex.A2, the entire extent of the suit

property has not been reflected. The learned trial judge, after perusing Ex.A2,

had categorically stated that the suit property is very much covered by the said

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S.A.(MD)No.375 of 2014

document. There is correspondence and co-relation between the present S.No.

266/5 and the old S.No.650/8. That is why, the learned counsel appearing for

the defendants contended before the trial Court that the entire extent has not

been shown. The learned trial judge, after perusing Ex.A2, had come to the

conclusion that the suit property originally belonged only to Janaki ammal.

This is a pure finding of fact which has been confirmed by the first appellate

court.

11.Paulraj, the first plaintiff was also the son of Janaki ammal and thus

the biological brother of the Chelladurai. Therefore, the trial Court came to the

conclusion that the plaintiffs are entitled to half share in the suit property. It is

true that if other items belonging to the joint family had been left out, the suit

would have been bad for partial partition. I wanted to know from the learned

counsel for the respondents whether he can make a statement that there are no

other properties available for partition. The learned counsel for the

respondents, on instructions, stated that apart from the suit property, there are

no other properties belonging to the joint family. If the grievance of the

appellants is that other items have been left, nothing stopped them from filing

an application for including the same. No material has been placed before this

Court regarding the existence of such left out items belonging to the joint

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S.A.(MD)No.375 of 2014

family. It is not enough to make a simple plea that the suit is bad for partial

partition. The defendant is obliged to furnish particulars in the written

statement as to how the suit is bad for partial partition. If details are not spelt

out in the written statement, the plaintiff cannot be non-suited on that ground.

The learned counsel for the appellant would state that the other items

mentioned in Ex.A2 have not been included in the suit schedule. I do not find

any merit in this contention. It is true that Ex.A2 does contain properties apart

from the suit schedule. But then, the plaintiffs have come out with a specific

case that the suit property alone belongs to the joint family. Since the

defendants have failed to substantiate their contention, the courts below rightly

declined to non-suit the plaintiffs on this ground.

12.Even though the plaintiffs have projected that there was an earlier

partition and also claimed that there are lease agreement between Paulraj and

Chelladurai, the defendants did not accept the said plea. If the defendants had

accepted that they are in occupation of half of the suit property as tenants, then,

the suit for partition would not have been maintainable. But the defendants

having denied the case of the plaintiffs in toto cannot now take advantage of a

passing plea set out in the plaint.

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S.A.(MD)No.375 of 2014

13.It is true that the revenue records stand in the name of the father of the

defendants, namely, Chellathurai. But it has been held in the decision reported

in (2017) 8 MLJ 417 (Ammasiammal Vs. M.Karupananan) that one cannot

sustain the plea of ouster on the ground of mutation made in the revenue

records. The courts below had given a categorical finding that the suit property

belonged to Paulraj and Chelladurai, the sons of Janaki ammal and given half

share in the suit property to the plaintiffs. The substantial questions of law are

answered against the appellants/defendants. The defendants' claim for equities

will be taken note of at the time of passing final decree. In the result, the

Second Appeal stands dismissed. No costs. Consequently, connected

miscellaneous petition is closed.



                                                                            27.07.2021



                Index              : Yes / No
                Internet           : Yes/ No
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                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.

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S.A.(MD)No.375 of 2014

To:

1. The I Additional District Munsif Court, Dindigul.

2. The Additional Subordinate Judge, Dindigul.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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

S.A.(MD)No.375 of 2014

G.R.SWAMINATHAN, J.

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S.A.(MD)No.375 of 2014