Madras High Court
Sesunathan vs John Mariya Joseph on 30 November, 2021
S.A(MD)No.742 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.742 of 2021
Sesunathan ... Appellant/Appellant/Plaintiff
Vs.
1.John Mariya Joseph
2.Chandrasekar
3.Santhiyagu ... Respondents/Respondents/
Defendants
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 16.04.2019 passed in
A.S.No.17 of 2017, on the file of the Principal Subordinate Court,
Dindigul, confirming the judgment and decree dated 21.06.2016 passed
in O.S.No.80 of 2013 on the file of the Additional District Munsif Court,
Dindigul.
1/13
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S.A(MD)No.742 of 2021
For Appellant : Mr.S.Sarvagan Prabhu
For Respondents : Mr.M.Lakshmi Shankar
JUDGMENT
The concurrent Judgments and decrees passed in O.S.
No.80 of 2013 by the Additional District Munsif Court, Dindigul and in
A.S.No.17 of 2017, by the Principal Subordinate Court, Dindigul, are
being challenged in the present second appeal.
2. The appellant / plaintiff has instituted a suit in O.S.
No.80 of 2013, on the file of the trial Court for the relief of partition,
wherein, the present respondents have been shown as the defendants.
3. For the sake of convenience, the parties are referred to, as
described before the trial Court.
4.The case of the plaintiff is as follows :
Originally, the suit property belongs to one Anthony Muthu
Servai and Adaikalam Servai and on partition, Anthony Muthu Servai
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S.A(MD)No.742 of 2021
was allotted 2 acre and 56 cents and Adaikalam Servai was allotted 2
acre and 56 cents and they were in separate possession and enjoyment of
the same. Adaikalam Servai has two sons, namely, Royappan and
Chinnappan. The said 2 acre and 56 cents was orally partitioned between
Royappan and Chinnappan and each has got 1 acre and 28 cents and they
were in separate possession and enjoyment of the same. Taking
advantage of the oral partition between the sons of Royappan, the legal
heirs of Rathinam and the third defendant has obtained patta comprising
the lands of the plaintiff. When the defendants 1 and 2 made an attempt
to construct a complex building and factory, the plaintiff objected and
stopped the same with the help of others.
5. Further, the plaintiff came to know that since the
plaintiff's share has not been properly partitioned and that the third
defendant has also not demarcated his portion of land, the third
defendant has tried to settle those properties in favour of his daughter. It
is further stated that the aforesaid settlement does not have any right over
the plaintiff's share in the property. In this regard, the plaintiff had sent a
legal notice on 24.12.2012 and in reply to the same, the defendants have
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S.A(MD)No.742 of 2021
sent a reply with false statements. Hence, the plaintiff filed the above
suit praying for a preliminary decree for the 1/3rd share belonging to the
plaintiff and also for final decree by appointing an Advocate
Commissioner to demarcate his property and hand over the possession to
the plaintiff.
6. In the written statement filed on the side of the
defendants, it is stated that the except the statement accepted by them, all
the other averments are denied. According to them, Adaikalam Servai
has two sons, namely, Royappan and Chinnappan. Royappan has three
sons namely, the third defendant, plaintiff and one Rathinam. The said
Rathinam has two sons, namely, the defendants 1 and 2 herein. When the
said Royappan was alive, his portion of property was partitioned among
his three sons and portion of the third defendant's property was allotted
with patta No.670, portion of the plaintiff's property was allotted with
patta Nos.1150 and 1151 and portion of the property of Rathinam, who is
the father of the defendants 1 and 2 was allotted with patta No.2147 and
they were in separate possession and enjoyment of their respective
properties. The defendants 1 and 2 put up construction of shops, five
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S.A(MD)No.742 of 2021
years prior to the date of filing of the suit and they have rented it to third
parties and enjoying the same. It is false to state that the defendants 1
and 2 have now only try to put up constructions in the said property. The
third defendant has not executed any settlement deed in favour of his
daughter and for doing so, the third defendant need not get any prior
permission or signature from the plaintiff. The plaintiff has no cause of
action to file the suit and hence, the suit has to be dismissed with costs.
7. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1 and one S.Santhiyagu was examined
as P.W.2 and Exs.A1 to A10 were marked. On the side of the defendants,
the third defendant examined himself as D.W.1 and Exs.B.1 to B.6 were
marked.
8. On the basis of the pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has dismissed the suit.
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S.A(MD)No.742 of 2021
9. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.
No.17 of 2017. 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.
Challenging the said concurrent Judgments and decrees passed by the
Courts below, the present second appeal has been preferred at the
instance of the plaintiff, as appellant.
10. Heard the learned counsel for the appellant and the
learned counsel for the respondents and also perused the materials
available on record.
11. The learned counsel appearing for the appellant submits
that the Courts below ought to have decreed the suit when the extent of
family share was not disputed and the Courts below had failed to take
into consideration that the demarcation could be finalized in a final
decree proceedings in a suit for partition and there is no piece of
evidence on the part of the respondents to establish that there was
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S.A(MD)No.742 of 2021
partition, which was legally enforced and the Courts below have
committed an error in dismissing the suit, when the respective shares of
the parties are admitted and till date, the partition among themselves has
not been legally enforced and hence, prayed to allow the second appeal.
12. As per the case of the plaintiff, he has claimed that the
defendants 1 and 2 are one of his deceased brother, namely, Rathinam’s
children and the third defendant is also another brother and he seeks for
1/3rd share belonging to his father Royappan. He further submitted that
there was no proper survey made regarding the suit properties and the
father of the defendants 1 and 2, the third defendant and between the
plaintiff, there is no such proper partition. It is only an oral partition.
Hence, the other two persons are having more extent of properties and
they have also encroached upon the plaintiff's property and prayed for
partitioning the properties into three parts.
13. The plaintiff has not produced any document to prove
his enjoyment and the defendants have filed documents Exs.B.1 to B.3
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and it is found from the said exhibits, patta No.1151 stands in the name
of the plaintiff and the patta No.3293 stands in the name of the plaintiff
and his brothers jointly. Regarding the total extent of 5 acres and 12
cents, 1 acre and 28 cents alone has been mentioned by the plaintiff, for
which, there was no four boundaries and there are lot of sub-divisions
made in Survey Nos.1703 and 1704. When the total extent is more than
5 acres, there was no mention about the extent of 1 acre 28 cents allotted
to Royappan and hence, the plaintiff is not entitled for any relief as
sought for by him. He further stated that it is an oral partition entered
into between the parties. During their life time, the property has been
orally partitioned between them and a building was constructed by the
defendants 1 and 2, when their father Royappan was alive. During the
relevant point of time, the plaintiff has not raised any objection regarding
the construction of the said building. When his father was alive, the same
has been partitioned orally and after 20 years from the date of oral
partition, the plaintiff has raised this issue and they have had a panchayat
and in the said panchayat, agreed that they are in enjoyment of the
respective properties and they have also obtained patta as per their
allotment and at this juncture, the plaintiff only due to vengeance has
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S.A(MD)No.742 of 2021
stated that they have to divide the 1 acre 28 cents and the oral partition
between the parties, which was done earlier, cannot be accepted and the
plaintiff has not given any valid reason for seeking for such partition.
14. Further, the plaintiff has not proved his case that
whether the defendant has executed a settlement deed in favour of his
daughter. When they have tried to construct a house, objection was
raised by the plaintiff and the same has not been proved by him. It is
seen that the said partition has been effected 45 years back which has
also been admitted by the plaintiff and now, he cannot come to this Court
seeking for partitioning the property. The partition has already been
effected and acted upon by the parties and disbelieving the same, the
plaintiff's case was dismissed by the appellate Court.
15.It is further seen that when there is no cause of action
arisen at that juncture, the appellate Court has come to the conclusion
that when Rathinam has executed the property by way of a settlement
deed in favour of his daughter and the said Rathinam’s daughter was not
made as a party to the lis and also come to the conclusion that there is no
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S.A(MD)No.742 of 2021
proper reason warranting interference and the appellate Court has
dismissed the same. It is made clear that the plaintiff himself has not
proved that the plaintiff has got patta in his favour and failed to establish
the identification and the extent of the suit property in a suit for partition
and the plaintiff cannot now come and say that the Court has erroneously
held against him.
16. At this juncture, it is worthwhile to refer to Section 49 of
the Indian Succession Act, which reads as follows :
49. Children's advancements not brought
into hotchpot. -Where a distributive share in
the property of a person who has died intestate
is claimed by a child, or any descendant of a
child, of such person, no money or other
property which the intestate may, during his
life, have paid, given or settled to, or for the
advancement of, the child by whom or by
whose descendant the claim is made shall be
taken into account in estimating such
distributive share.
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S.A(MD)No.742 of 2021
17.The claim of the plaintiff is definitely barred under
Limitation Act, when the plaintiff has accepted the oral partition, which
has been held 45 years back and now, he cannot raise the same. When he
has already accepted that there was an oral partition, the fact that the
defendants have encroached upon the property has not been proved by
the plaintiff in the manner known to law. This Court finds no perversity
or illegality in the concurrent judgments of the trial court as well as the
appellate Court warranting interference at the hands of this Court and
also there is no question of law much less substantial question of law is
involved in this appeal and thus, the second appeal fails.
18.Accordingly, the Second Appeal is dismissed. No costs.
30.11.2021
Index : Yes/No
Internet : Yes/No
rm
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S.A(MD)No.742 of 2021
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 Principal Subordinate Court,
Dindigul.
2.The Additional District Munsif Court,
Dindigul.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.742 of 2021
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.742 of 2021
30.11.2021
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