Madras High Court
A.M.Akbar vs A.M.Abdul Kareem on 29 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.627 of 2013
and
MP No.1 of 2013
A.M.Akbar ... Appellant / Appellant
Defendant
Vs.
1. A.M.Abdul Kareem ... Respondent /1st respondent /
Plaintiff
2. Smt. Jeenath ... Respondent / 2nd respondent
Prayer: Second Appeal filed under section 100 of the Code of Civil
Procedure to set aside the Judgement and decree dated 25.04.2008
made in O.S.No.46 of 2007 on the file of Subordinate Judge, Pollachi as
confirmed by the Judgement and decree dated 30.11.2011 made in
A.S.No.59 of 2010 on the file of Additional District cum Fast track court,
No.1, Coimbatore.
For Appellant : Mr.R.Gouri
For Respondents : M/s.C.R.Prasanan
for R1
M/s.I.Abrar Md.Abdullah
for R2
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2
JUDGMENT
The defendant is the appellant in this second
appeal.
2. The 1st respondent / plaintiff filed a suit seeking
for the relief of partition and for allotment of ½ share in the suit
property.
3. The case of the plaintiff is that the suit property
was alloted to one Mohammed Hanifa under a partition deed
dated 26.09.1969, marked as Ex.A1. The said Mohammed Hanifa
had two sons viz., Abdual Karim and Akbar. They are the plaintiff
and the defendant in this suit. The said Mohammed Hanifa
executed a settlement deed dated 15.02.1983, marked as Ex.A2,
in favour of the plaintiff and the defendant. Mohammed Hanifa
died leaving behind the plaintiff and the defendant as his legal
heirs. Since the plaintiff did not want to continue in joint
possession, the suit came to be filed seeking for allotment of ½
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share through metes and bounds.
4. The defendant filed a written statement and
took a stand that there was a oral partition between the plaintiff
and the defendant even during the life time of their father and
as per the oral partition, the plaintiff was alloted the western
side of the suit property and the defendant was alloted the
eastern side of the suit property. Therefore, the defendant took
a stand that there is no cause of action to once again seek for
partition and sought for the dismissal of the suit.
5. Both the Courts below on appreciation of oral
and documentary evidence and after considering the facts and
circumstances of the case, concurrently held in favour of the
plaintiff and passed the preliminary decree. Aggrieved by the
same, the defendant has filed this second appeal.
6. Heard the learned counsel for the Appellant and
the learned counsel for the respondent and this Court has also
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carefully perused the materials available on record and the
findings of both the Courts below.
7. Both the Courts below found that under Ex.A2
settlement deed, the entire property was settled in favour of the
plaintiff and the defendant jointly. The defendant who came
with a specific plea that there was a oral partition between him
and the plaintiff, did not even get into the witness box. It is the
wife and the father-in-law of the defendant who were examined
on the side of the defendant. Therefore, adverse inference was
drawn by both the Courts below and it was held that the plea of
oral partition taken by the defendant was not proved. Both the
Courts below also took into consideration the documents relied
upon by the defendant and found that all the documents stood in
the name of Mohammed Hanifa. Hence, there was no
documentary proof on the side of the defendant to substantiate
the plea of oral partition.
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8. In the considered view of this Court, the
defendant did not prove that the western portion was alloted to
the plaintiff and the eastern portion was alloted to the
defendant and the materials on records goes to show that the
suit property remained undivided as on the date of the suit. The
findings rendered by both the Courts below is based on
appreciation of evidence and this Court does not find any
perversity in those findings. In any event, no substantial question
of law is involved in the present second appeal.
9. In the result, this second appeal is dismissed.
Considering the facts and circumstances of the case, there shall
be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
29.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
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N.ANAND VENKATESH.,J
rka
To
1. The Subordinate Judge, Pollachi
2. The Additional District cum Fast track Court, No.1, Coimbatore.
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.627 of 2013
29.03.2022
https://www.mhc.tn.gov.in/judis
