Madras High Court

Veerasamy vs Thangaraj @ Rangasamy on 22 April, 2022

                                                                                S.A.No.180 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 22.04.2022

                                                         CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                                   S.A. No.180 of 2022
                                               and C.M.P. No.3593 of 2017

                  1. Veerasamy
                  2. Rajamani @ Marisamy
                  3. Rajendran @ Marimuthu                                          .. Appellants

                                                            Vs.

                  Thangaraj @ Rangasamy                                            .. Respondent


                            Second Appeal is filed under Section 100 of Civil Procedure Code,

                  1908, against the judgment and decree dated 07.01.2021 made in A.S. No.15

                  of 2019 on the file of the Court of III Additional District and Sessions Judge,

                  Erode at Gobichettipalayam, confirming the judgment and decree dated

                  18.07.2018 made in O.S. No.58 of 2015 on the file of the Court of the

                  Subordinate Judge, Sathyamangalam.



                                    For Appellants     : Mr. T.Dhanasekaran




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

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                                                                                      S.A.No.180 of 2022

                                                    JUDGMENT

The defendants in the suit in O.S. No.58 of 2015 are the appellants in

the above second appeal. The respondent in this appeal filed the suit in O.S.

No.58 of 2015 for partition of his 1/4th share in all the suit properties with

reference to good and bad soil and for consequential reliefs.

2. The suit property consists of eight items and they are described in the

plaint with specific boundaries and all the properties are located in

Sengapudur Village, Sathyamangalam Taluk, Gobichettipalayam, Erode.

3. The case of the respondent in the plaint is that the plaintiff and the

defendants are brothers and that the first, second and third items of suit

properties were purchased by their father Veerasamy as per the sale deed

dated 19.10.1981, 27.03.1985, 31.05.1988 respectively. It is also stated that

fourth item of the properties belonged to plaintiff and defendants as per sale

deed dated 12.06.1996. As regards 5th item of suit schedule, it is pleaded that

the plaintiff and defendants have acquired the property under sale deed dated

12.03.1997. As regards 6th ,7th and 8th item of the suit schedule properties, it is

stated in the plaint that they were also purchased by the plaintiff and

defendants as per subsequent sale deeds dated 26.10.1998, 14.06.2000 and

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S.A.No.180 of 2022

21.12.2000. Stating that their father died intestate on 17.12.1987 and the

plaintiff and defendants are the legal heirs to inherit the properties of father

Verasamy under Hindu Succession Act, the suit for partition was filed by the

respondent in respect of all the properties.

4. The suit was resisted by the appellants only on the ground that there

was a oral partition pursuant to intervention of village elders. The appellants

produced before the lower Court a rough plan indicating the manner in which

the suit properties were divided among all the parties namely the plaintiff and

defendants. It was only on the basis of such oral partition, the appellants

requested the trial Court to dismiss the suit for partition.

5. The trial Court, after framing the issue whether the suit properties

had already been partitioned on 14.05.2014 as pleaded by the plaintiff, found

that the oral partition dated 14.05.2014 is not proved to be the one on the

basis of which parties are in possession. Though the evidence let in by the

appellants suggest negotiation for partition, it was held by trial Court that

there was no actual partition by metes and bounds. Hence, the suit was

decreed as prayed for. Aggrieved by the findings of the trial Court granting a

preliminary decree for 1/4th share in favour of first respondent, the appellants https://www.mhc.tn.gov.in/judis

S.A.No.180 of 2022

preferred an appeal in A.S. No.15 of 2019 before the District Court, Erode.

6. The lower appellate Court also after framing the same issue, found

that the oral partition as pleaded by the appellants is not proved. The lower

appellate Court considered the oral and documentary evidence independently

and held that the oral partition pleaded by appellants is not established. The

plan produced by the appellants was also held to be not decisive to accept the

case of oral partition as pleaded by the appellant.

7. Aggrieved by the concurrent findings of the Courts below, the

appellants preferred the above appeal by raising the following substantial

questions of law in the memorandum of grounds of second appeal:

“ a. Whether the Courts below are correct and justified in decreeing the suit when the appellants / defendants established that already the suit schedule properties were partitioned orally between the parties before the Panchayatdars in the year 2014 itself ?

b. Whether the Courts below are correct and justified in granting decree overlooking the evidence of P.W.2 and D.W.2, who had clearly deposed about the earlier partition of the suit schedule properties between the parties and taken separate possession of their respective shares and were in enjoyment of the same ?

c. Whether judgment and decree passed by the Courts below is correct and justified in law when the plaintiff / respondent has admitted https://www.mhc.tn.gov.in/judis

S.A.No.180 of 2022

about rough / model plan / graph based on oral partition filed by the appellants / defendants along with their written statement ?

d. Whether the judgment and decree of the lower Courts is sustainable when the P.W.2 and D.W.3 had clearly established the oral partition which is clearly corroborated the case of the appellants / defendants ?

e. Whether the Courts below are correct in decreeing the suit when the respondent / plaintiff is admitting the oral partition and separate possession of the drafted model plan, which was filed along with the written statement ?”

8. In the memorandum of grounds, repeatedly the appellants have

raised the issue that oral partition as pleaded by the appellants have been

categorically proved particularly by the admission of P.W.2 and D.W.3. This

Court considered the evidence of P.W.2 and D.W.3 and found that there is no

admission by P.W.2 regarding oral partition as it was suggested by the

appellants. The evidence of P.W.2 and D.W.3 would not corroborate the case

of appellants. None of the witnesses admit any oral partition even though it is

established that the parties are in possession of certain properties without

there being actual division by metes and bounds. The findings of the lower

appellate Court that the oral partition is not proved, is supported by not only

oral evidence of parties but also the attending circumstances. D.W.2 admits in

the course of evidence that the plaintiff and defendants are not in talking https://www.mhc.tn.gov.in/judis

S.A.No.180 of 2022

terms and the properties are kept in common. Though an attempt was made

for amicable partition, there was no evidence of actual partition.