Madras High Court
Selvaraj vs Nithiyanandam on 27 November, 2023
S.A.No.714 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.714 of 2020
and C.M.P.No.14742 of 2020
Selvaraj ...Appellant
Vs.
1.Nithiyanandam
2.Sivaraman
3.Santhi
Sulochana (died)
4.Vijayan Naidu
5.Senthil
6.Prabakaran
7.Radhakrishnan
8.Balasubramanian
9.Karthikeyan
10.Lakshmi
11.Ramanathan
12.Shanmugam Prabhu
13.Reka ...Respondents
PRAYER : Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 07.11.2019 passed in
A.S.No.66 of 2018 on the file of the Additional District Court (FTC),
Villupuram confirming the Judgment and decree dated 02.07.2018 passed in
O.S.No.317 of 2013 on the file of the II Additional Subordinate Court,
Villupuram.
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1/10
S.A.No.714 of 2020
For Appellant : Mr.S.Mukunth
Senior Advocate
for Mr.K.Venkatasubban
For Respondent 2 : Mr.M.R.Thangavel
For Respondents 3 to 12 : set ex-parte
JUDGMENT
The second defendant, who suffered decree for partition is the
appellant before this Court. The first respondent/plaintiff filed the suit for
partition seeking allotment of 1/3 share in the suit properties. The Trial Court
granted a preliminary decree for partition as prayed for. The first appeal filed
by the appellant is also dismissed. Challenging the concurrent findings
against him, the appellant has come by way of this second appeal.
2.According to the first respondent/plaintiff, the Suit 'B' Schedule
properties are ancestral properties of the family. The first respondent/plaintiff,
the second respondent/first defendant and the appellant/second defendant are
brothers. The third respondent is the sister of appellant, the first and second
respondents. The respondents 4 to 13 are children of deceased sister of
appellant, the first and second respondents. It was the case of the first
respondent that after death of his father Krishnamoorthy Naidu, his daughters
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namely sisters of first and second respondents gave up their right over the
suit properties. In the year 1989, the properties were tentatively divided
among the brothers for convenient enjoyment without any pucca partition.
Later on misunderstanding arose among the brothers and hence, the first
respondent was constrained to file the suit for partition seeking allotment of
1/3 share in the suit properties.
3. The appellant herein filed the written statement and resisted the suit
on the ground that on 09.05.1989, there was a pucca partition among the
appellant, the first and second respondents. It was claimed by the appellant in
the written statement that the first respondent/plaintiff was allotted with 25
items of 'B' Schedule properties with an extent of 11 acre 21 cents. The
second respondent/first defendant was allotted with 24 items of 'B' Schedule
properties with an extent of 11 acre 30 cents. The appellant/second defendant
was allotted with 11 items of 'B' Schedule properties with an extent of 7 acre
18 cents. Thus, the appellant herein pleaded oral partition among three
brothers even in the year 1989 itself. It was also claimed that all the brothers
had been enjoying the respective properties allotted to their share on that day
onwards and therefore, the suit for partition filed by the first respondent was
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not maintainable.
4. Before the Trial Court, the first respondent was examined as P.W.1
and 6 documents were marked on his side as Ex.A1 to Ex.A6. The second
respondent/first defendant was examined as D.W.1. The appellant /second
defendant was examined as D.W.2. An independent witness one
Venkadachalam was examined as D.W.3. On behalf of second respondent, 3
documents were marked as Ex.B1 to Ex.B3. On behalf of the appellant, 13
documents were marked as Ex.B4 to Ex.B16.
5. The Trial Court, on appreciation of oral and documentary evidence
available on record, especially the deposition of appellant and D.W.3, came to
the conclusion that there was no partition in the family during 1989, the
properties were divided tentatively and enjoyed by the brothers for
convenient enjoyment. Accordingly, the Trial Court granted the preliminary
decree for partition of 1/3 share in favour of first respondent/plaintiff as
prayed for. Aggrieved by the same, the appellant herein preferred an appeal in
A.S.No.66 of 2018 on the file of Additional District Court (FTC),
Villupuram. The First Appellate Court concurred with the findings of the
Trial Court dismissed the appeal. Aggrieved by the same, the appellant is
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before this Court.
6. The learned senior counsel appearing for the appellant submitted
that the first respondent herein even in his plaint averment admitted about
separate mess among the brothers and hence, the oral partition pleaded by
the appellant should have been accepted by the Courts below. The learned
counsel further submitted that when the partition of suit properties in the year
1989 itself was established by the appellant, there was no cause of action for
the first respondent to maintain a fresh suit for partition. The learned senior
counsel further submitted that the Courts below without considering the
documentary evidence let in by the appellant namely the account book
maintained by the first defendant, rough plan drawn by the parties to effect
partition of the properties and mutation of appellant's name in Electricity
Board in respect of electricity connection to pump set in suit properties etc.,
erroneously came to the conclusion that the appellant failed to prove the oral
partition pleaded.
7. In the plaint averments, the first respondent/plaintiff clearly pleaded
that after death of parents, for the sake of convenient enjoyment, the
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properties were tentatively divided among the brothers and there was no
proper partition by metes and bounds. The 1st respondent also pleaded that
sisters relinquished their share in favour of three brothers. The suit was
mainly resisted by the appellant on the ground that there was a pucca
partition by metes and bounds on 19.05.1989 among three brothers.
Therefore, the plea raised by the first respondent that sisters have given up
their right over the suit properties was not at all disputed by the appellant.
Further, sisters and their legal representatives failed to appear before the
Court and resisted the suit claim. An independent witness examined on behalf
of the appellant as D.W.3 also supported the case relinquishment of share by
sisters. In such circumstances, the Courts below are justified in coming to the
conclusion that the sisters of the appellant, the first and second respondents
gave up their right over the suit properties.
8. In the plaint averment, the first respondent clearly pleaded that there
was no partition among the brothers by metes and bounds and properties were
divided tentatively only for convenient enjoyment.
9. It is settled law that merely because there is a separate mess among
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the brothers, partition of cultivable land cannot be presumed. The appellant
herein, who pleaded oral partition of cultivable land has to prove the same by
acceptable evidence. The appellant herein was examined as D.W.2 and he
marked a letter said to have been addressed to Electricity Board by brothers
and sisters under Ex.B10.
10. The Trial Court, after considering the said letter Ex.B10 came to
the conclusion that brothers and sisters of appellant in that letter clearly
mentioned that the properties were divided for the sake of convenience. The
appellant, who was examined as D.W.2 also admitted the properties which
were tentatively allotted to the share of second respondent Sivaraman was
mortgaged by him (appellant). If the properties were properly divided and
allotted to the share of Sivaraman, it is not open to the appellant to mortgage
the same. Therefore, based on the admissions of appellant as D.W.2 and
documents marked by him especially Ex.B10, the Courts below rightly came
to the conclusion that the appellant failed to prove that the properties were
divided by metes and bounds among the brothers. Accordingly, the Trial
Court as well as the First Appellate Court came to the conclusion that the first
respondent was entitled to decree for partition as prayed for. The said factual
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conclusion of the Courts below is based on proper appreciation of oral and
documentary evidence available on record. Therefore, I am not inclined to
interfere with the judgment and decree passed by the Courts below.
11. At this juncture, the learned senior counsel appearing for the
appellant submitted that the properties which are in enjoyment of the
appellant has been improved by him. Therefore, he must be permitted to
workout his equity in final decree proceedings. It is always open to the
appellant to work out equity in the final decree proceedings in accordance
with law. If any request is made by any of the parties with regard to allotment
of properties based on equity, the said claim has to be considered by the Trial
Court in final decree proceedings, in accordance with law, on it's own merits.
12. With these observations, the second appeal stands dismissed
a) by affirming the judgment and decree in A.S.No.66 of 2018 on the
file of Additional District Court (FTC), Villupuram dated 07.11.2016,
confirming the judgment and decree in O.S.No.317 of 2013 on the file of II
Additional Subordinate Court, Villupuram, dated 02.07.2018.
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b) In view of the above facts and circumstances of the case, there will
be no order as to costs. Consequently, connected miscellaneous petition is
closed.
27.11.2023
Index : Yes/No
Internet : Yes/No
nti
To
1. The II Additional Subordinate Court, Villupuram.
2. The Additional District Court (FTC), Villupuram.
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S.SOUNTHAR, J.
nti
27.11.2023
https://www.mhc.tn.gov.in/judis
