Madras High Court
Jagadesan vs Minor Gopinath on 7 December, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
AS.No.75 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.12.2023
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.75 of 2017
Jagadesan ... Appellant
Vs.
1.Minor Gopinath
rep. by Guardian Ad Litem Mother
2.Kavitha
3.V.R.Vediyappan ...Respondents
PRAYER: Appeal Suit is filed under Section 96 r/w Order 41 rule 1 of CPC
against the judgment and decree in OS.No.70 of 2010 on the file of the
Additional District Judge, Dharmapuri dated 07.08.2015.
For Appellant : M/s.V.Srimathi
For Respondents : No appearance
JUDGMENT
This Appeal suit is filed against the judgment and decree passed in
OS.No.70 of 2010 on the file of the Additional District Judge, Dharmapuri
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dated 07.08.2015, thereby dismissed the suit filed for partition, separate
possession, permanent injunction and declaration.
2. For the sake of convenience, the parties are referred to as per their
ranking in the trial Court.
3. The plaintiff is the appellant and the defendants are the
respondents. The case of the plaintiff is that the suit property originally
belonged to his father and it is an ancestral property. His father had two sons,
the plaintiff and one, Kalaiarasan. His father died in the year 1980 leaving
behind two sons to succeed his estate. The suit property was in common
enjoyment of the plaintiff and his brother. During the year 2009, his brother
Kalaiarasan died leaving behind him, his wife and his son i.e. defendants 2 & 1
respectively. The plaintiff and defendants 1 & 2 are having equal half undivided
share in the suit property. Insofar as the property comprised in survey
No.217/2B, it was already acquired for laying road by the panchayat. After
demise of the said Kalaiarasan, the second defendant had sold some of the
properties in favour of the third defendant. Hence the suit for partition and also
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challenging the sale deeds executed by the second defendant in favour of the
third defendant as null and void and for permanent injunction.
4. Resisting the same, defendants 1 & 2 filed written statement stating
that in the year 1993, there was oral partition between the family members in
respect of the first item of the suit property comprised in survey No.217/2A and
the second item of the suit property comprised in survey No.224/1 to a total
extent of 63 cents, they were divided into half share. Likewise, in respect of the
property comprised in survey No.224/1 admeasuring 67 cents and property
comprised in survey No.224/5 as well as the land comprised in survey
No.225/8A were allotted in favour of the plaintiff. Accordingly, they enjoyed
their respective share and doing agriculture. Thereafter, the husband of the
second defendant and the plaintiff were living there. After marriage of the
second defendant, there was dispute between the plaintiff and the husband of
the second defendant. Thereafter, the husband of the second defendant vacated
the house and constructed separate house in item No.1 of the suit property. He
also dug up well and obtained service connection in his name. The house was
also assessed to house tax. After demise of her husband, the second defendant
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along with the first defendant are in possession and enjoyment of the same. In
order to maintain the first defendant and also for his school education expenses,
the second defendant sold out a portion of the property admeasuring 7 cents in
favour of the third defendant in the item 1 of the suit property. Since the second
defendant is a widow and helpless, the plaintiff came forward with the present
suit with false allegations. As such, the suit is also bad for non joinder of
necessary parties since the daughters of her father-in-law were not impleaded as
party in the suit for partition.
5. On hearing the rival pleadings, the learned trial Judge framed the
following issues for determination of the suit :-
(i) Whether the plaintiff is entitled to get the partition decree
as prayed for?
(ii) Whether the plaintiff is entitled to get the permanent
injunction against the defendants as prayed for?
(iii) Whether the plaintiff is entitled to Declaratory decree in
respect of sale deed dated 14.10.2010 as null and void?
(iv) Whether the suit property has already been oral
partitioned?
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(v) Whether the suit is bad for non-joinder of necessary
parties?
(vi) Whether the suit is hit by partial partition?
(vii) To what other relief the plaintiff is entitled?
6. In support of the plaintiff's case, P.W.1 & P.W.2 were examined and
two documents were marked as Ex.A.1 to Ex.A.2. On the side of the
defendants, D.W.1 to D.W.5 were examined and Ex.B.1 to Ex.B.7 were marked.
On considering the oral and documentary evidences adduced by the respective
parties and the submission made by the learned counsel, the trial Court
dismissed the suit. Aggrieved by the same, the appellant has preferred this
appeal suit.
7. The learned counsel for the plaintiff would submit that the property
comprised in survey No.217/2B situated at Parayapatti Village was already
acquired for laying road by the panchayat, that too while his brother was alive.
Therefore, the said property is no way connected with the properties mentioned
in the suit. There was no partition by metes and bounds and even according to
the second defendant, there was tentative arrangement. While being so, the
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second defendant unilaterally dealt with the partition of the property in favour
of the third defendant. Knowing these facts, he purchased the portion of the
property which was jointly owned by the plaintiff and the second defendant.
Therefore, the third defendant cannot claim to be a bonafide purchaser for valid
consideration. There was no oral partition between the family members in
respect of the suit properties. Further, the revenue records are not conclusive
piece of evidence of division and even otherwise, defendants 1 & 2 are unable
to indicate the exact date of the alleged division amongst the brothers. She
further submitted that the other daughters are not necessary parties to the suit
since already they were settled with sridhana articles and they had no claim over
the suit property.
8. Heard, M/s.V.Srimathi, the learned counsel appearing for the
plaintiff.
9. The suit properties were owned by the father of the plaintiff. He
died in the year 1980. He had two sons. After his demise, his two sons became
the absolute owners of the suit properties. The specific stand of the second
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defendant is that already the suit properties were partitioned while her husband
was alive, that too before their marriage. It is also evident from PW2, who
deposed that already there was oral partition between the plaintiff and his
deceased brother in the year 1993 itself. Accordingly, they were allotted their
respective shares and they were in possession and enjoyment of their respective
lands.
10. After acquisition of the land for laying road by panchayat, the
value of the land increased and as such plaintiff filed suit for partition in respect
of the share which was already allotted in favour of the second defendant's
husband. In fact, after partition, the husband of the second defendant dug up a
well in the land comprised in survey No.224/1. For the well, with the consent of
the plaintiff, electricity connection was given. It is also evident from DW2.
After the oral partition, separate patta was issued and all the revenue records
were mutated accordingly in respect of their respective shares. After partition,
the husband of the second defendant availed loan by mortgaging his share of
the property with Chinnankuppam Primary Agricultural Cooperative Bank. As
per the partition, the second defendant sold out a portion of the property in
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favour of the third defendant. Therefore, the trial court rightly dismissed the suit
and this Court finds no infirmity or illegality in the judgment and decree passed
by the trial court.
11. Accordingly, this appeal suit is dismissed and the judgment and
decree passed in OS.No.70 of 2010 on the file of the Additional District Judge,
Dharmapuri dated 07.08.2015 is confirmed. There shall be no order as to costs.
07.12.2023
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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To
1.The Additional District Judge,
Dharmapuri
2.Section Officer,
V.R.Section,
High Court of Madras
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G.K.ILANTHIRAIYAN, J.
lok
07.12.2023
https://www.mhc.tn.gov.in/judis
