Madras High Court
Thirupathi vs Thangaraj on 5 April, 2023
S.A.(MD)No.80 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.80 of 2018
and
C.M.P.(MD)No.1708 of 2018
1.Thirupathi
2.Govindaraj ... Appellants
/Vs./
1.Thangaraj
2.Rajammal ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 19.07.2016 made in
A.S.No.48 of 2015 on the file of the Principal District Court, Dindigul,
confirming the judgment and decree dated 12.08.2015 made in O.S.No.
150 of 2012 on the file of the Additional Sub Court, Dindigul and allow
this second appeal.
For Appellants : Mr.G.Gomathi Sankar
For Respondents : Mr.H.Lakshmi Shankar (R1)
1/8
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S.A.(MD)No.80 of 2018
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the Courts below. The appellants are the defendants in the suit
in O.S.No.150 of 2012 on the file of the Additional Sub Court, Dindigul.
The said suit was filed for declaration and permanent injunction and in
alternate, for partition. In the forthcoming paragraphs, the parties are
described as per their litigative status in the suit.
2. The plaintiffs claimed that pursuant to the sale deed dated
10.07.2006 (Ex.A1) executed in favour of the first plaintiff and the
settlement deed dated 20.08.2008 (Ex.A2) executed in favour of the
second plaintiff, they are entitled to the properties therein individually.
However, the plaintiffs contended that the suit properties have not been
divided between the plaintiffs and the defendants. In the aforesaid
circumstances, the suit was filed for declaration and for permanent
injunction or in alternate, for the relief of partition against the
defendants.
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S.A.(MD)No.80 of 2018
3. However, as seen from the written statement, the defendants on
the contrary would submit that by an oral partition, the properties were
already divided. But at the same time, they have admitted the execution
of the sale deed in favour of the first plaintiff and the settlement deed
executed in favour of the second plaintiff.
4. The trial Court, based on the pleadings of the respective parties
framed issues and after giving due consideration to the oral and
documentary evidence, granted the alternate relief of partition in favour
of the plaintiffs as prayed for in the plaint.
5. As seen from the sale deed dated 10.07.2006 (Ex.A1) and the
settlement deed dated 20.08.2008 (Ex.A2) standing in the name of the
first plaintiff and the second plaintiff respectively, no boundaries have
been mentioned in the respective schedules to identify the properties of
the first plaintiff as well as the second plaintiff. Admittedly, the patta
(Ex.A3) dated 09.12.2011, for the suit schedule property also stands in
joint names of the plaintiffs and the defendants' father. No documentary
evidence has been produced as seen from the exhibits marked on the side
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S.A.(MD)No.80 of 2018
of the defendants, namely Exs.B1 to B4 that the boundaries of the
respective properties were demarcated and the respective parties were
allotted specific portions as per the oral partition.
6. Before the trial Court, on the side of the defendants, only one
witness was examined, namely D.W.1, the first defendant. From his oral
evidence also, it is clear that there was no demarcation of boundaries,
though he would contend that there was an oral partition.
7. Only based on the pleadings, oral and documentary evidence
available on record, the trial Court has rightly granted the relief of
partition in respect of half share in the suit schedule properties in favour
of the plaintiffs and granted preliminary decree for the same. The lower
appellate Court, namely the Court of Principal District Judge, Dindigul,
by its Judgment and decree dated 19.07.2016, in the appeal filed by the
defendants, has also rightly confirmed the findings of the trial Court by
dismissing the first appeal.
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S.A.(MD)No.80 of 2018
8. It is also brought to the notice of this Court that pursuant to the
decrees of the Courts below, a final decree application has already been
filed by the plaintiffs before the trial Court and an Advocate
Commissioner has also been appointed by the trial Court, who had also
inspected the suit schedule properties.
9. Since the documentary evidence placed on record makes it clear
that the suit schedule properties have not been partitioned, as claimed by
the defendants and the patta (Ex.A3) also stands in joint names of both
the plaintiffs and the defendants' father and that too when the final decree
application has already been filed by the plaintiffs before the trial Court
and an Advocate Commissioner has also been appointed, who has also
inspected the suit schedule properties, this Court is of the considered
view that both the Courts below have rightly rejected the contentions of
the appellants / defendants that there was already an oral partition
between the parties. However, it is also to be noted that there has not
been any demarcation of boundaries with regard to the respective
portions and therefore, there could not have been any oral partition, as
claimed by the defendants in the suit.
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S.A.(MD)No.80 of 2018
10. The substantial questions of law raised in the grounds of this
Second Appeal by the appellants / defendants are all issues, which have
already been considered by the Courts below, based on the oral and
documentary evidence available on record and the said findings given by
the Courts below are only in accordance with law. Therefore, there are
no substantial questions of law required to be considered by this Court
under Section 100 of C.P.C.. In the result, there is no merit in this
Second Appeal. Accordingly, this Second Appeal is dismissed. There
shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
05.04.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.80 of 2018
TO:
1.The Principal District Court, Dindigul.
2.The Additional Sub Court, Dindigul.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.80 of 2018
ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.80 of 2018
Dated:
05.04.2023
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