Madras High Court

V.Palanisamy vs V.Balasubramaniam on 22 June, 2021

                                                                             S.A.No.192 of 2012

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 22.06.2021

                                                        CORAM

                                   THE HON'BLE MR.JUSTICE C.SARAVANAN

                                                   S.A.No.192 of 2012

                 V.Palanisamy                                             ... Appellant

                                                          Vs.
                 1.V.Balasubramaniam
                 2.V.Vadivel                                              ... Respondents

                        Second Appeal filed under Section 100 of C.P.C., against the
                 Judgment and Decree dated 18.08.2011 made in A.S.No.55 of 2010 on
                 the file of the Additional District and Sessions Court/Fast Track Court
                 No.II, Coimbatore confirming the judgment and decree dated 09.10.2009
                 made in O.S.No.102 of 2008 on the file of the Third Additional Sub
                 Court, Coimbatore.

                                   For Appellant       : Mr.N.Manokaran

                                   For Respondents : Mr.K.Govi Ganesan for R1
                                                     R2 – No appearance



                                                   JUDGMENT

This appeal has been filed against the judgment and decree dated

18.08.2011 passed in A.S.No.55 of 2010 on the file of Additional District

and Sessions Court/Fast Tract Court, No.II, Coimbatore confirming the

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judgment and decree dated 09.10.2009 made in O.S.No.102 of 2008 on

the file of the Third Additional Sub Court, Coimbatore.

2.This appeal was not admitted. Earlier Notice of admission was

ordered. After service of notice on the respondents, they are now

represented by their counsel. This is listed for final hearing. Both the

counsel for the appellant and the respondents are present today.

3.The appellant was the 1st defendant in O.S.No.102 of 2008. The

said suit was filed by the 1st respondent for the following relief:-

a)Directing the division of the suit properties into 3 equal shares by metes and bounds and to allot one such share to the plaintiff and to put the plaintiff in separate possession of the share alloted to him.

b)Appoint a Commissioner for division of properties into 3 equal shares as aforesaid.

c)Directing the defendants to pay the costs of the suit.

4.The suit scheduled properties A & B were purchased on

27.05.1959. The title deeds of these properties were marked as Ex.A1

and A2 before the Trial Court.

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5.The first property measured 7.5 cents was purchased in the name

of the parents of the appellants in Ex.A1. The 2nd property in Ex.A2

measured 5.7 cents. It was purchased in the name of the maternal grand

mother named Karupaiya of the appellant and respondents.

6.The case of the 1st respondent/plaintiff before the Trial Court

was that these properties were liable to be partitioned after the death of

their parents and grandmother and were to be divided equally among the

appellant and the respondents, they being siblings having equal rights.

7.On the other hand, the appellant stated that there was an oral

partition in the year 1995. It was the case of the appellant that 5.7 cents

of property in Ex.A2 was allotted to him and that he had made

improvement and therefore the suit for partition was not maintainable.

8.The appellant examined two Panchayatars as DW2 and DW3

who allegedly witnessed the oral partition in the year 1995.

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9.The appellant further submitted that he got married in the year

1985 on 07.04.1985. His wife was employed in the Commercial Tax

Department and with the help of the additional income of his wife, the

appellant took care of the aged parents and therefore considering the

same, the appellant and the respondent herein had agreed for allotment of

a larger extent of the property in favour of the appellant.

10.That apart it was submitted that the appellant and his wife took

loan for the marriage expenses of the respondents herein and therefore

the larger extent of the property was allotted to the appellant.

11.The Trial Court however disbelieved the evidence of D.W.2 and

D.W.3 Panchayatars as the respondents were able to elicit contradiction

in the deposition of these two witnesses.

12.Similarly, D.11 and D.16 for demonstrating expenses incurred

for improvement of property were ignored stating that they were filed

only during the pendency of the suits. The appellate Court has not found

any error in the judgment and decree of the Trial Court.

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13.The learned counsel for the appellant has brought to my

attention with the following decisions of this Court rendered in context

of oral partition:-

(i)Union of India Vs. Ibrahim Uddin & Anr (2012) 8 SCC 148;

(i)Ramulu Ammal Vs. Ramachandra Reddy and others 2009-3

L.W 622;

(ii)Chitra Vs. Saroja and another 2017 (2) MWN 241 and

(iii)Prema Suryanarayanan Vs S.Venkataraman & others 2018

CTC 750.

14.The learned counsel for the appellant submits that the Hon'ble

Supreme Court has also laid down the scope of interference under

Section 100 of the CPC. In support of the present appeal, the learned

counsel for the appellant submitted that following questions my be

considered as substantial questions of law:

a.Whether in the absence of any specific issue as regards the oral partition pleaded by the 1st defendant, are the courts below right in coming to the conclusion that the 1st defendant/appellant has not established the oral partition which took place in the month of January 1995?

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b.Whether the courts below erred in law in decreeing the suit for partition especially when the parties have been in separate possession in exercising rights of ownership over separate blocks of land which the courts below might well presume that the parties have already divided their properties through an oral partition?

c.Whether the courts below have committed an error in decreeing the suit for partition by overlooking the admission made in the evidence of P.W.1 coupled with the evidence of D.W.2 and D.W.3?

15.I have considered the arguments advanced by the learned

counsel for the appellant and the respondent.

16.No substantial question of law arise for consideration in this

appeal in as much as the Trial Court has framed an omnibus issue as to

whether the plaintiff was entitled to 1/3rd share in the suit scheduled

property. Though, a more specific issue could have been framed by the

Trial Court, nevertheless, on a reading of the judgment and decree of the

Trial Court, it is noticed that the issue which the appellant submits ought

to have been framed and answered has been answered against the

appellant by the Trial Court. The appellant had produced witness and

marked exhibits before the Trial Court. Even if more specific issue was

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