Madras High Court
Kasirajan vs Thavasi on 22 March, 2022
S.A.(MD)No.220 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.220 of 2010
1.Kasirajan
2.Rajagopal ... Appellants / Appellants / Plaintiffs
-Vs-
1.Thavasi
2.Rajammal
3.Navaneethan
4.Kandhavel (died) ... Respondents / Respondents / Defendants
5.Ganga Lakshmi
6.Rajkumar
7.Sumathi
8.Ramesh Kumar ... Respondents
(R5 to R8 are suo motu impleaded as Lrs of the deceased
4th respondent vide order dated 22.02.2022 )
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree made in A.S.No.11 of 2008 on the
Subordinate Judge, Virudhunagar, dated 25.08.2008 confirming the
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S.A.(MD)No.220 of 2010
Judgment and decree made in O.S.No.145 of 2005 on the file of the District
Munsif Court, Virudhuangar dated 27.07.2007.
For Appellants : Mr.A.Arumugam
for M/s.Ajmal Associates
For R1 to R3 : Mrs.P.Malini
For R5 & R6 : No appearance
JUDGMENT
The plaintiffs in O.S.No.145 of 2005 on the file of the District
Munsif Court, Virudhunagar are the appellants in this second appeal.
2. The suit was filed for the relief of declaration and permanent
injunction. The suit property is comprised in Survey No.868/3 in Karicheri
Village and measures an extent of 25 cents. The suit properties also
included a well. The plaintiffs putforth a case that the suit property
originally belonged to one Thavasi Konar and that there was a oral partition
among the sons in the year 1972 and that the same was reduced into writing
in the year 1975. It was marked as Ex.A1. Under the said document, the
suit property was allotted to the plaintiffs . The first defendant is the grand
nephew of the plaintiffs. The second defendant is the mother of the first
defendant. The third defendant is the son-in-law of the second defendant
and brother-in-law of the first defendant. The fourth defendant was the
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S.A.(MD)No.220 of 2010
nephew of the plaintiffs. The defendants filed written statement
controverting the plaint averments. Based on the divergent pleadings, the
trial court framed the necessary issues. The first plaintiff examined himself
as P.W.1. Another brother by name Sarangarajan was examined as P.W.2.
Ex.A1 to Ex.A9 were marked. The first defendant examined himself as
D.W.1. One Paulraj was examined as D.W.1. Ex.B1 to Ex.B6 were
marked. Through witnesses, four revenue documents were marked. After
consideration of the evidence on record, the trial court by judgment and
decree dated 27.07.2007 dismissed the suit. Aggrieved by the same, the
plaintiffs filed A.S.No.11 of 2008 before the Sub Court, Virudhunagar. The
first appellate court confirmed the decision of the trial court and dismissed
the appeal. Challenging the same, this second appeal came to be filed.
Though the second appeal was filed way back in the year 2010, only notice
was ordered and it has not been admitted till date.
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial question of law and admit the second appeal
and take it up 'for disposal'.
4. Per contra, the learned counsel appearing for the respondents
submitted that no substantial question of law arises for consideration.
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S.A.(MD)No.220 of 2010
5. I carefully considered the rival contentions and went through the
evidence on record.
6. The plaintiffs came out with a definite case that the suit property
formed part of a larger extent of land. The father of the plaintiffs and the
great grandfather of the first defendant was one Thavasi Konar. He had a
number of properties. He also had a number of wives (five in number).
Through them, he had begotten as many as 12 sons. Thavasi Konar died in
the year 1971. There was oral partition among the sons in the year 1972.
The terms of oral partition were reduced into writing on 15.02.1975. The
said document was marked as Ex.A1. Under Ex.A1, the suit property
measuring 25 cents along with the well was allotted to the plaintiffs. The
trial court after noticing Ex.A1 came to the conclusion that it cannot be
believed. I also had a look at the original document. It does not inspire
my confidence. The defendants have also challenged the validity of Ex.A1.
The plaintiffs anchored their entire case on Ex.A1 and the said document
has been shown to be unreliable. The courts below cannot be faulted for
having come to the conclusion that the plaintiffs have miserably failed to
prove their case. Therefore, the dismissal of the suit filed by the plaintiffs
herein will have to be necessarily sustained and accordingly sustain the
same. However, one aspect of the matter will have to be taken note of.
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S.A.(MD)No.220 of 2010
7. The learned counsel appearing for the appellants raised a pertinent
question that when the defendants also conceded that there was a oral
partition in the year 1972, then, if they deny that the suit property was
allotted to the plaintiffs, they must come out with an alternative case as to
the details of allotment made in favour of the plaintiffs. The defendants are
not able to place any material in this regard. Therefore, the courts below
could not have given any declaration in respect of the suit property in
favour of the first defendant. The courts below ought to have confined
themselves to holding that the plaintiffs having failed to prove their case
deserve dismissal. They should not have ventured beyond. On the strength
of the revenue document, the courts below could not have given declaration
of title in favour of the defendants in the suit filed by the appellants herein
and more so, when the defendants have not filed a counter claim.
Therefore, the finding that the suit property was allotted in favour of
Ramiah Konar in a oral partition stands vacated.
8. With this observation, the second appeal is dismissed. No cost.
22.03.2022
Internet : Yes/No
Index : Yes/No
rmi
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.220 of 2010
rmi
To
1.The Subordinate Judge, Virudhunagar.
2.The District Munsif Court, Virudhuangar.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.220 of 2010
22.03.2022
https://www.mhc.tn.gov.in/judis
