Madras High Court
Munusamy vs Gowran on 26 October, 2021
S.A.No.704 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
Second Appeal No.704 of 2015
Munusamy ... Appellant
Vs.
Gowran ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree made in A.S.No.53 of 2011 on the file of
the Subordinate Judge, Dharmapuri, dated 28.09.2012 confirming the judgment
and decree made in O.S.No.107 of 2006 on the file of the District Munsif,
Palacode, dated 29.09.2011.
For Appellant : Mr.M.Selvam
For Respondent : Mr.R.Thirugnanam
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S.A.No.704 of 2015
JUDGMENT
Aggrieved over the concurrent finding of the Courts below, the
plaintiff has preferred the above Second Appeal.
2. According to the plaintiff, his father Govinda Gounder purchased
the suit property by virtue of registered sale deed dated 07.01.1954 and was in
possession and enjoyment of the same. In an oral partition, the property was
allotted to the share of the plaintiff and ever since, he is in possession and
enjoyment. The defendant attempted to interfere with the possession and
therefore, he issued a legal notice dated 20.02.2006 and it was replied by the
plaintiff by a notice dated 06.04.2006. The defendant has claimed title to the
property on the pretext that the property which was sold by the plaintiff's father
in the year 1954 was re-conveyed to their predecessor in the year 1957 and they
continued to be in possession. Since the plaintiff is entitled to the property and
the property is in S.No.702/1 and the Well in S.No.702/2 and that he is entitled
to 1/3rd share in the Well, sought for declaration and injunction restraining the
defendant from interfering with his peaceful possession.
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S.A.No.704 of 2015
3. In the written statement, the defendant has taken a stand that in
1954, the property was sold to the plaintiff's father. Thereafter, after period of
three years, the plaintiff's father reconveyed the property in the year 1957. In
the said transaction, the predecessor of the defendant namely, Kaveri Gounder,
has purchased 0.10 cents and Thirupathi purchased 0.09 cents and they are in
possession. Because, it was believed that the plaintiff's father and his family
will not interfere and go by the undertaking that they did not register the
reconveyance. But, however, they are in possession of the property and
mortgaged in favour of one M.Shanmugam and they have cultivated the lands
for six years. They redeemed the property in the year 1997 and they are jointly
cultivating the lands. Therefore, the possession as claimed by the plaintiff is
false and the plaintiff is not entitled to the relief sought for.
4. The trial Court framed appropriate issues and tried the suit. Before
the trial Court, the plaintiff has examined himself as P.W.1 and two other
witnesses and marked Ex.A1 to Ex.A5. On the side of the defendant, D.W.1 to
D.W.6 were examined and no documents were marked. The revenue
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S.A.No.704 of 2015
documents were marked as Ex.X1 to Ex.X6. After considering the materials,
the trial Court came to a categorical finding that the plaintiff has established his
title in favour of his father Kunji @ Govinda Gounder. On the other hand, the
defendant has not proved the title and possession. Therefore, they are not
entitled to the same. However, the trial Court went on to observe that the
plaintiff is not the sole owner of the property as it is admitted that he has two
other brothers. Though he examined P.W.3, who is his step brother, he failed
either to implead him or to examine witnesses to prove the oral partition and his
exclusive title to the property and dismissed the suit. On appeal, the judgment
and decree of the trial Court was confirmed after considering the materials
placed before it.
5. From the materials, it is categorically proved that by Ex.A1, dated
07.05.1954, the suit property was purchased by the father of the plaintiff by
virtue of the registered sale deed. This factum is admitted by the defendant also.
Therefore, it is clear that from 07.01.1954, the plaintiff's father was the title
holder of the property. It is also admitted by the plaintiff that there are three
sons to Kunji @ Govinda Gounder and he died intestate. In that event, all the
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S.A.No.704 of 2015
three sons have equal share. The plaintiff could have examined P.W.3, his step
brother, to prove that there was an oral partition and the property was allotted in
favour of the plaintiff. But, the blood brother of the plaintiff, who is another
share holder was neither added as party nor examined as witness to prove the
factum that the plaintiff is the exclusive title holder of the suit property by
virtue of oral partition entered between sons of Govinda Gounder. As far as the
possession is concerned, it is also proved by the patta and other documents
marked as Ex.X1 to Ex.X6. It is also categorically found that the defendant,
who failed to get reconveyance by virtue of registered document is not entitled
to the title and possession by virtue of the same. However, it is admitted that
the plaintiff has two other brothers. In that event, burden is cast on the plaintiff
to prove his exclusive title. In absence of any evidence, it goes without saying
that the plaintiff has not established that he is entitled to the property
exclusively.
6. Therefore, the finding of the Courts below is absolutely correct and
legally sustainable. If at all, the plaintiff wants to prove his exclusive title, he
has to file a suit for declaration of title by impleading all the legal heirs.
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S.A.No.704 of 2015
Therefore, this Court is of the considered opinion that the appellant/plaintiff
has to work out his remedy by filing a suit for declaration impleading all the
legal heirs. The Second Appeal does not merit any consideration for the relief
of declaration sought for by the plaintiff.
Accordingly, the Second Appeal is dismissed giving liberty to the
appellant to work out his remedy in the manner known to law. No costs.
26.10.2021
asi
To
1. The Subordinate Judge, Dharmapuri.
2. The District Munsif, Palacode.
https://www.mhc.tn.gov.in/judis
S.A.No.704 of 2015
M. GOVINDARAJ, J.
asi
Second Appeal No.704 of 2015
26.10.2021
https://www.mhc.tn.gov.in/judis
