Madras High Court
Babu vs Rangadass Naidu on 20 March, 2023
S.A.No.555 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.03.2023
CORAM
THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN
S.A.No.555 of 2006
1. Babu
2. Dayalan (Deceased)
3. D.Chandra
4. D.Muthukumaran
5. Sumitha ...Appellants
(Appellants 3 to 5 brought on record as LRs of the deceased 2 nd
appellant vide order of the Court dated 25.11.2014 in M.P.Nos. 1 to 3
of 2014 in S.A.No.555 of 2006).
Vs.
1. Rangadass Naidu
2. Raghu Naidu ...Respondents
1/12
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S.A.No.555 of 2006
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the I Additional
Subordinate Court, Cuddalore dated 14.10.2005 in A.S.No.28 of 2005
confirming the Judgement and Decree of the Additional District
Munsif Court, Cuddalore dated 30.09.2004 in O.S.No.158 of 2004.
For Appellants : Mr. G.R.M.Palaniappan
For Respondents : Mr. D.Baskar
JUDGMENT
The plaintiffs in O.S.No.109 of 2001 on the file of the
Subordinate Court, Cuddalore, which was re-numbered due to
enhancement of pecuniary jurisdiction as O.S.No.158 of 2004, on the
file of the Additional District Munsif, Cuddalore, are the appellants in
this Second Appeal. The parties are referred to in the same rank as
before the Trial Court.
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S.A.No.555 of 2006
2. The plaintiffs sought for the relief of declaration, permanent
injunction and recovery of damages. The case of the plaintiffs is that
there were two brothers, namely, Narayanasamy Naidu and
Venkatasamy Naidu, were the owners of the schedule mentioned
properties. The brothers partitioned several properties amongst
themselves and kept apart the suit property to be enjoyed in common.
This was by way of a registered partition deed dated 15.09.1936, which
is marked as Ex.B.1. The suit schedule property is marked as D-
Schedule property in the said partition deed.
3. The said Narayanasamy Naidu had four children, namely,
Dhandapani, Srinivasalu, Jayaraman and Ramanujam. Dhandapani had
two daughters, one of whom is called Delli Bai. The said Delli Bai
sold the property on 01.09.1988 in favour of Raghu Naidu who is the
2nd defendant. Another son of Narayanasamy Naidu, one Jayaraman
settled his undivided 10 cents in favour of his son Subramania Naidu
on 23.12.1980. The said Subramania Naidu in turn sold the property in
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S.A.No.555 of 2006
favour of one Neelathachi Ammal on 09.06.1983. The said
Neelathachi Ammal inturn sold the property to Raghu Naidu on
04.03.1998. The 1st defendant, Rangadoss Naidu purchased the
property directly from Srinivasalu Naidu by way of sale deed dated
24.11.1983. The plaintiffs claimed adverse possession as the D-
Schedule property in the partition deed, which is the subject matter of
the present suit, was not included in the plaint schedule property in
O.S.No.205 of 1964. The said suit was a partition suit filed amongst
the legal heirs of the said Narayanasamy Naidu.
4. Now we have to move to the other branch, namely, the branch
through Venkatasamy Naidu. The head of this branch is one
Venkatasamy Naidu and he had three sons, namely, Perumal Naidu,
Duraisamy Naidu and Bashyam Naidu (the defendants claimed that his
name was not Srinivasalu Naidu but was Bashyam Naidu). There has
been no litigation in the family of Venkatasamy Naidu and the
plaintiffs on the death of Perumal Naidu claimed that since
Venkatasamy Naidu had enjoyed the property exclusively, they
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S.A.No.555 of 2006
succeeded to the estate through their father Perumal Naidu. Therefore,
by ouster they are entitled to the entire 80 cents.
5. On a consideration of the oral and documentary evidence the
learned Additional District Munsif, Cuddalore, had dismissed the suit.
This Judgment and Decree was taken on appeal by the appellants
herein to the I Additional Subordinate Court, Cuddalore in A.S.No.28
of 2005. The learned I Additional Subordinate Court, Cuddalore
concurred with the finding of the Trial Court and dismissed the appeal.
Challenging the same the plaintiffs are the appellants before this Court
6. This Second Appeal was admitted on the following Substantial
Questions of Law:
“1.When the appellants had proved their long, open
uninterrupted and hostile possession to the exclusion of
the respondents and their predecessors in title for over the
statutory period, Whether the courts below are correct in
law in rejecting the claim based on Ouster, merely because
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S.A.No.555 of 2006
such right was claimed under the nomenclature of
prescriptive title?
2.When it is axiomatic in law that the mofussil
pleadings cannot be viewed with ritualistic rigour,
Whether the use of wrong phrase, would disentitle the
appellants from Claiming a right to which they are
otherwise entitled to?
3.Whether the lower appellate Court is correct in
law in summarily rejecting the document produced at the
appellate stage, in contravention of the provisions of
Order 41 Rule 27 of the Code of Civil Procedure?
7. I have carefully considered the arguments of the learned
counsels appearing for the appellants and the respondents.
8. The claim of ouster has to be proved strictly, especially when
the plaintiffs have to come forward with a case that they are co-owners.
Despite being aware of being excluded from joint family property, the
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S.A.No.555 of 2006
defendants kept quiet and permitted the co-sharers in possession to
enjoy the property exclusively as their own. In the case on hand I do
not have to look further than the admission made by P.W.1 in the
following lines:
“vd; je;ij bgUkhs; eha[Lnth my;yJ
thjpfshfpa eh';fnsh tHf;F brhj;J 80
brz;oYk; KGtJk; v';fSf;nf ghj;jpak; vd;W
vGj;J K:ykhf cupik cz;L vd;W ve;j
fhyj;jpYk; TwpaJ fpilahJ/ “fpiuak;
bfhLj;j 3 egu;fs; nghf kw;w 4
ghf!;ju;fsplk; vd; je;ijnah thjpfshfpa
eh';fnsh vGj;JKykhf tpLjiyg;gj;jpuk;
vGjp th';ftpy;iy/ tHf;F brhj;J
bghWj;J gh!;ju;fSf;F vjpupilahf eh';fs;
vg;nghJk; mDgt ghj;jpak; bfhz;lhoaJ
,y;iy”
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S.A.No.555 of 2006
9. This admission of P.W.1 shows that at no point of time they
had enjoyed the property exclusively. On the contrary, the documents
filed by the defendants would go to show that they had exercised their
right as co-owner and had alienated their undivided 10 cents of lands
on 23.12.1980, 09.06.1983, 04.03.1998 and 01.09.1998. Apart from
this, the plaintiffs' branch through Venkatasamy Naidu had also
exercised their right and had alienated undivided 10 cents on
24.11.1983 in favour of the 2nd defendant.
10. Mr. G.R.M.Palaniappan, learned counsel for the appellants /
plaintiffs would submit that as this property had not been included in
O.S.No.205 of 1964, which is the partition suit suit between the family
members of Narayanasamy Naidu, implies that they do not claim a
share over this property. I am not able to agree with the said
submission because of the following aspects:
O.S.No.205 of 1964, as already stated was a
partition suit amongst the brothers, namely,
Narayanasamy Naidu and Venkatasamy Naidu.
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S.A.No.555 of 2006
Admittedly, in the instant case, the share of D-schedule
property in the partition deed dated 15.09.1936 was kept in
common. When the property has been kept in common and
when the parities do not want to break the unity of
ownership, I cannot presume that presentation of
O.S.No.205 of 1964 meant that they do not claim any share
over the property, held in common by family members of
Narayanasamy Naidu and Venkatasamy Naidu.
11. The long possession of co-owner does not fructify into
ouster. The evidence on record shows that few of the co-owners have
exercised their right and had alienated the property in favour of the
defendants.
12. The learned counsel for the appellants would make a plea that
a decree for partition can be granted in the suit. I am afraid that I
cannot do that in the present proceedings because all the sharers are not
before this Court and the defendants have only purchased the shares of
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S.A.No.555 of 2006
Dhandapani Naidu, Jayarama Naidu and Srinivasalu Naidu. The
plaintiffs have not impleaded any of the legal heirs of Srinivasalu
Naidu, Ramanuja Naidu i.e., sons of Narayanasamy Naidu nor their
paternal uncle Duraisamy Naidu or his legal heirs.
13. In the absence of all the sharers before this Court, the issue
under Order VII Rule 7 of the Code of Civil Procedure cannot be
exercised to grant decree for partition. The properties being enjoyed in
common and all being the co-owner the question of granting injunction
also does not arise. Hence, the Substantial Questions of law are
answered against the appellants.
14. In the result, the Second Appeal is dismissed. Considering
the relationship between the parties no cost is being imposed.
20.03.2023
Index : Yes/No
Internet : Yes/No
kan
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S.A.No.555 of 2006
To
1.The I Additional Subordinate Court,
Cuddalore.
2.The Additional District Munsif Court,
Cuddalore
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S.A.No.555 of 2006
V.LAKSHMINARAYANAN, J.
kan
S.A.No.555 of 2006
20.03.2023
https://www.mhc.tn.gov.in/judis
