V.P.Chinnappa vs D.Subramani
2023 Latest Caselaw 4847 Mad

                                                                                       S.A.No.1307 of 2008

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED :     26.04.2023

                                                            CORAM

                           THE HONOURABLE JUSTICE Mr.V.LAKSHMINARAYANAN

                                                       S.A.No.1307 of 2008


                     1.V.P.Chinnappa
                     2.C.Mahalingam
                     3.Malliga
                     4.Murugan
                     5.M.Sumathi                               ...Appellants.

                                                               Vs.

                     1.D.Subramani
                     2.Jothilakshmi
                     3.S.Sridaran
                     4.S.Ramesh
                     5.S.Jeeva
                     6.Yagu
                     7.A.Sundaramurthy                               ...Respondents.


                     PRAYER:Second Appeal filed under Section 100 of the Code of Civil
                     Procedure against the judgment and decree passed by the Principal District
                     Judge, Vellore dated 13.12.2006 in A.S.No.53 of 2006 confirming the
                     Judgement and decree passed by the Additional District Munsif Court, At
                     Vellore dated 7.12.2004 in O.S.No.1268 of 1996.

                                  For Appellants   :      Mr.A.Palaniappan
                                  For R1 to R6     :      Mr.R.Vasudevan
                                  R7               :      Mr.E.Kandasamy
                     1/6

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                                                                                         S.A.No.1307 of 2008

                                                           JUDGMENT

This Second Appeal arises against the judgment and decree passed by

the Principal District Judge, Vellore dated 13.12.2006 in A.S.No.53 of 2006

confirming the Judgement and decree passed by the Additional District

Munsif Court, At Vellore dated 7.12.2004 in O.S.No.1268 of 1996.

2.The said suit was filed for declaration and for injunction. The claim

of the plaintiff is that the property was purchased by the first plaintiff's

father Periyathambi Gounder on 26.01.1948. After the purchase of the

property, Periyathambi Gounder was in possession and enjoyment of the

suit property. By way of an oral partition of the year 1960 between

Periyathambi Gounder and his five sons, the property fell to the share of

V.P.Chinnappa. V.P.Chinnapa constituted a joint family along with the sons

namely Mani and Mahalingam. The said Mahalingam is the second plaintiff.

Mani passed away in the year 1993 and therefore, his legal heirs are

plaintiffs 3 to 6. They claim that the defendant Nos.1 to 6 have no right over

the property and the property was sold by them without any right, title or

interest in their favour to the 7th defendant. This is the cause of action for the

suit.

3.The case of the defendant Nos.1 to 6 is that the property did belong

https://www.mhc.tn.gov.in/judis S.A.No.1307 of 2008

to Periyathambi Gounder but in the oral partition of the year 1960, the

property fell to the share of Malliga, the daughter of Periyathambi Gounder

and not to the share of V.P.Chinnappa.

4.The courts below have held that neither parties have proved the oral

partition. No documents have been produced by the plaintiffs to prove that

they are in possession of the property.

5.The second appeal has not been admitted by this court. Notice

regarding admission was ordered on 17.11.2008.

6.I heard Mr.A.Palaniappan, learned counsel appearing for the

appellants and Mr. Vasudevan, learned Counsel appearing for the

respondent Nos.1 to 6 and Mr.E.Kandasamy appearing for the 7th

respondent. I have gone through the pleadings, the records of the courts

below as well as perused the judgments.

7.I am afraid that the plea of the plaintiff has to fail. Both parties rely

upon the oral partition of the year 1960 but have unfortunately failed to

prove the same. If the partition is not proved, the children of Periyathambi

Gounder will be entitled to equal share of the property. The suit being for

declaration of title, it is the duty of the plaintiff to prove the case. The

plaintiff could have examined his brothers in order to prove that

https://www.mhc.tn.gov.in/judis S.A.No.1307 of 2008

Periyathambi Gounder had partitioned the property and had allocated shares

to each of the sons. That opportunity was not availed by the plaintiff. The

plea of the oral partition failing, the suit for declaration of title is not

maintainable.

8.Insofar as the relief of injunction is concerned no documents have

been produced to show that the plaintiffs are in independent possession and

enjoyment of the property. As I am not satisfied on both the issues, I am not

inclined to admit this appeal.

9.I do not find any illegality or perversity in the order of the courts

below. Questions of law suggested by Mr.A.Palaniappan, the learned

counsel for the Appellant do not arise for consideration. Hence the second

appeal fails and stands dismissed. No Costs.

                                                                                             26.04.2023


                     Index             : Yes/No
                     Speaking          : Yes/No
                     Neutral Citations : Yes/No
                     nst






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                                                               S.A.No.1307 of 2008




                     To:

1.The Additional District Munsif Judge, Vellore.

2.The Principal District Judge, Vellore.

3. Record Keeper VR Section High Court of Madras Chennai.

https://www.mhc.tn.gov.in/judis S.A.No.1307 of 2008

V.LAKSHMINARAYANAN. J, nst

S.A.No.1307 of 2008

26.04.2023

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