Madras High Court
R.Sreedher vs Shanthi on 14 September, 2022
A.S.No.208 of 2013
and M.P.No.2 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
A.S.No.208 of 2013
and
M.P.No.2 of 2013
R.Sreedher ... Petitioner
..Vs..
1.Shanthi
2.Dhanabagiyam
3.Ravichandran
4.V.P.Raja
5.Rajeswari
6.Kalaichelvi
7.Veerasamy Naidu ... Respondents
PRAYER : First Appeal filed under Section 96 of C.P.C., against the fair
and decreetal order dated 17.12.2012 made in O.S.No.175 of 2007 on the
file of the II Additional District Judge, Salem.
For Petitioner : Ms.Chitra Sampath, Sr. Counsel
for Mr.R.Sunil Kumar
ORDER
The present appeal is filed against the decree and judgment
dated 17.12.2012 made in O.S.No.175 of 2007 on the file of the II
Additional District Judge, Salem.
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
2.The appellant is the seventh defendant in O.S.No.175 of
20078 on the file of the II Additional District Judge, Salem. The first
respondent/plaintiff filed the said suit for partition of the suit properties
into six equal shares and to allot one such share to the plaintiff.
3.The defendants 1 to 6 remained absent and were set ex parte
and seventh defendant (appellant herein) alone contested the suit.
4.For the sake of convenience, the parties are referred to as per
their ranking in the trial Court and in appropriate places, their rank in the
present appeal would be indicated.
5.The plaintiff is the daughter of the first defendant and
defendants 2 to 5 are her brothers and sisters. According to the plaintiff,
the suit properties are the self-acquired properties of her late father
V.P.Rangasamy and the defendants 1 to 3 sold suit Item No.1 of the suit
property in favour of the third defendant through two registered sale
deeds dated 22.01.2007 (Ex.A1 & Ex.A2) without informing her.
According to her, the seventh defendant in fact was aware of the
plaintiff's right over the suit properties and therefore, he cannot be termed
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
as bonafide purchaser for value.
6.The seventh defendant resisted the suit on the following
grounds :
1) He purchased only Item No.1 of the suit property from the
defendants 1 to 3.
2) The plaintiff and the defendants 4 & 5 were married long back and
they are living with their husbands separately and therefore, they do
not have any share in the suit properties.
3) The defendants 1 to 3 were in continuous possession and
enjoyment of the suit Item No.1 till they sold the property in favour
of the plaintiff.
4) The defendants 3 to 5 and plaintiff have lost their right if any over
the suit properties as the defendants 1 to 3 have perfected title by
way of adverse possession and ouster.
7.The learned II Additional District Judge, Salem, framed the
following issues :
1) Whether the plaintiff is entitled to 1/6th share in the suit properties?
2) Whether the plaintiff is ousted from claiming share in the suit
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
properties?
3) Whether the plaintiff is entitled for the relief of partition and
accounts prayed for?
4) To what relief, if any the plaintiff is entitled?
8.In the trial Court, the plaintiff examined herself and two other
witnesses and marked Ex.A1 to Ex.A5. The seventh defendant
examined himself as DW1 and marked Ex.B1 to Ex.B7.
9.After full contest, the learned II Additional District Judge,
Salem, decreed the suit vide his decree and judgment dated 17.12.2012 in
favour of the plaintiff and passed a preliminary decree for partition of the
suit properties into six equal shares and to allot one such share to the
plaintiff.
10.Aggrieved over the same, the seventh defendant had filed the
present appeal.
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
11. The point that has to be considered in the instant appeal is
that whether the adverse possession and ouster claimed by the seventh
defendant is sustainable in law?
12.Heard Ms.Chitra Sampath, learned senior counsel assisted by
Mr.R.Sunilkumar for the appellant.
13.Though notice was served on the respondents and their
names are printed in the cause list, there is no representation on behalf of
the respondents, either in person or through a counsel.
14.During the course of arguments Ms.Chitra Sampath, learned
senior counsel appearing for the appellant did not press the claim of the
seventh defendant as regards the adverse possession and ouster. It is fairly
conceded by the learned senior counsel appearing for the appellant that
the seventh defendant purchased the property only from the defendants 1
to 4 and 6 and that the plaintiff and the fifth defendant not party to the
sale deeds Ex.A1 & Ex.A2.
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
15.The trial Court had extensively dealt with all the issues and
held that the plaintiff is entitled to 1/6 share. All the observations made by
the trial Court Judge is based on sound principles of law and therefore, no
interference is warranted by this Court. However, the learned senior
counsel appearing for the appellant contended that since the seventh
defendant had purchased Item No.1 of the suit property long back and has
been in possession of the same, the trial Court may be directed to consider
the same at the time of passing of final decree and allot the property sold
in favour of the seventh defendant to the share of his vendors on equity.
This appears to be fair and the trial Court at the time of passing of final
decree shall keep this in mind while passing final decree.
16.With above observations, the appeal is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
14.09.2022
Index : Yes/No
Internet : Yes/No
mtl
https://www.mhc.tn.gov.in/judis
A.S.No.208 of 2013
and M.P.No.2 of 2013
R. HEMALATHA, J.
mtl
To
1. The II Additional District Judge, Salem.
2. The Section Officer, V.R. Section, High Court, Madras.
A.S.No.208 of 2013
and M.P.No.2 of 2013
14.09.2022
https://www.mhc.tn.gov.in/judis
