Madras High Court
Ramathilagam vs Unknown on 3 October, 2023
S.A.No.301 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.10.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.301 of 2017
and
C.M.P.No.7194 of 2017
Ramathilagam
...Appellant
Vs.
...Respondent
Krishnaveni
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code,
to set aside the judgment and decree dated 23.11.2016 made in A.S.No.23 of
2015 on the file of the learned Subordinate Court, Dharapuram, reversal of the
judgment and decree dated 23.02.2015 made in O.S.No.228 of 2012 on the
file of the learned District Munsif Court, Kangayam, by allowing this Second
Appeal.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.K.S.Jeyaganeshan
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S.A.No.301 of 2017
JUDGMENT
The defendant in the suit is the appellant. The suit is for
partition. The suit was dismissed by the Trial Court and the said judgment was
reversed in First Appeal. Aggrieved by the judgment and decree passed by the
First Appellate Court, the defendant has come up by way of this Second
Appeal.
2. Plaint Averment:
According to the respondent/plaintiff, the suit property originally
belongs to one K.Ramasamy Gounder and K.P.Periyasamy Gounder. The total
extent of the suit property is 6 acres 95 cents in S.No.149/A1. One of the
co-owner namely K.Ramasamy sold his undivided half share in favour of one
Subramania Goundar under Ex.A.1 dated 29.06.1970. The said Subramania
Goundar in turn sold the said property to the plaintiff under Ex.A3 dated
22.10.1999. Thus, it is the case of the respondent/plaintiff that she is entitled
to undivided half share in the suit property. It was further averred by the
respondent though there was no partition by metes and bounds between the
parties, for the sake of convenience, they have been enjoying their shares
separately. As the said enjoyment is not acceptable and convenient for both the
parties, the respondent was constrained to file a suit for partition.
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S.A.No.301 of 2017
3. Averment in written statement:
The appellant herein filed a written statement accepting the right
of the respondent over half of the suit property. However, it was specifically
pleaded by the appellant, even during life time of his father, there was oral
partition by metes and bounds between the parties and they have been
enjoying the respective shares by mutating revenue records. It was further
averred by the appellant that in the portion of the property alloted to her share,
she has improved the same by constructing a house. Therefore, the appellant
sought for dismissal of the suit on the ground that there was oral partition by
metes and bounds.
4. The parties went to the trial on these pleadings and respondent
was examined as PW.1 and one Mani was examined on her behalf as PW.2.
Six documents were marked on behalf of the respondent as Exs.A1 to A6. On
behalf of the appellant, she examined herself as DW.1 and one independent
witness was examined as DW.2. On behalf of the appellant, twenty seven
documents were marked as Exs.B1 to B27.
5. The trial Court on appreciation of oral and documentary
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S.A.No.301 of 2017
evidence available on record, came to the conclusion that the appellant proved
the oral partition pleaded by her and consequently dismissed the suit.
Aggrieved by the same, the respondent filed an appeal in A.S.No.23 of 2015,
on the file of Subordinate Court, Dharapuram. The First Appellate Court
based on the recitals found in the title documents of the respective parties came
to the conclusion that the oral partition pleaded by the appellant cannot be
accepted and consequently reversed the findings of the trial Court and allowed
the appeal by granting preliminary decree for partition as prayed for by the
respondent. However, the Appellate Court observed that the appellant is
entitled to workout equity in respect of the improvements made by her in the
suit property. Aggrieved by the said judgment and decree, the appellant is
before this Court.
6. At the time of admission, this Court formulated the following
substantial questions of law by order dated 27.04.2017:
“(1) When the parties have been in possession of,
and exercising right of ownership over separate blocks of land
for a long time, whether the First Appellate Court is correct in
ignoring the presumption that the lands have been already
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S.A.No.301 of 2017
divided and rights of the parties have been defined in such a
manner?;
(2) Whether the First Appellate Court erred in
overlooking the factum of separate possession and enjoyment
of the defendant over her portion as evident from the mutation
entries marked as Ex.B2 to Ex.B27 as well as Ex.A4 and Ex.A5
especially in the absence of any challenge in the manner
known to law?.”
7. Elaborating the substantial questions of law framed at the
time of admission, the learned counsel appearing for the appellant submitted
that P.W.1 herself admitted about separate and exclusive enjoyment of the
property by the appellant and the same has been corroborated by separate
patta issued in the name of appellant and respondent. Therefore, when there
are enough oral and documentary evidence available on record in support of
separate enjoyment of respective shares by the parties, the Courts below ought
not to have overlooked the same and held that the appellant failed to prove the
plea of oral partition.
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S.A.No.301 of 2017
8. In support of his contention, the learned counsel of the
appellant relied on the judgment of this Court in Seetharaman rep. by Power
Agent, Narasimman Vs. Jayaraman and others reported in 2014 (3) CTC
9. The learned counsel appearing for the respondent submitted
that the appellant failed to lead any evidence in support of her plea of oral
partition. The learned counsel further submitted that even in the plaint
averment, it has been stated that both the parties are enjoying the suit
property separately for the sake of convenience, without any actual partition
by metes and bounds. In the absence of any evidence to prove factum of oral
partition, the First Appellate Court is justified in reversing the findings of the
trial Court and granting a decree for partition as prayed for.
10. The respondent/plaintiff purchased undivided half share in
the suit property from one Subramania Gounder under Ex.A3. The
description of the property found in Ex.A3 clearly establish that the
respondent/plaintiff purchased only undivided half share in the year 1999.
Likewise, the appellant's father Nanchappa Gounder purchased only
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S.A.No.301 of 2017
undivided half share in the suit property from K.P.Periyasamy Gounder. The
said K.P.Periyasamy Gounder is the co-owner of the vendor's vendor of the
plaintiff namely K.Ramasamy. Therefore, perusal of the description of the
property found in Exs.A2 and A3 would suggest both the appellant and
respondent purchased only undivided half share in the suit property. Though
the appellant in her written statement pleaded there was a oral partition by
metes and bounds and subsequently the revenue documents were also got
mutated, the appellant failed to plead the date of alleged oral partition. The
appellant also failed to examine any independent witness to prove the factum
of oral partition pleaded by her. The only independent witness examined on
behalf of the appellant namely DW.2, is the brother of respondent's husband.
It is seen from the evidence of PW.1 and Ex.A6 marked on behalf of the
respondent that a criminal complaint has been given against DW.2 by
respondent's husband with regard to an assault case. Therefore, it is clear that
the relationship between DW.2 and respondent's family got strained.
Therefore, the trial Court discarded the evidence of DW.2. If the evidence of
DW.2 is ignored, the appellant has no other evidence except her interested
testimony in support of the factum of oral partition.
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S.A.No.301 of 2017
11. The learned counsel appearing for the appellant by relying on
revenue documents produced by both the parties contended that separate
enjoyment by both the parties for quite long time has been proved by patta
issued in the respective names. The First Appellate Court has taken into
consideration the patta/Ex.A5 issued in the name of respondent and
patta/Ex.B4 issued in the name of appellant and observed that there is a
discrepancy with regard to the extent mentioned in the revenue documents. As
per Ex.A5/patta issued in the name of respondent, one hectare 88 cents of land
in S.No.302/2B is found to be in possession of respondent. 1.88 hectares is
equivalent to 4.64 acres. Therefore, under Ex.A5, the respondent/plaintiff is
issued with patta more than what she is entitled to in the suit property. When
there is a serious discrepancy with regard to the extent of property in
possession of the respective parties, we cannot safely come to the conclusion
that there was partition by metes and bounds and based on oral partition, the
parties mutated their respective names in the revenue records. In such
circumstances, the revenue documents relied on by the appellant cannot be the
sole basis for proving the factum of oral partition pleaded by her. Therefore,
the First Appellate Court rightly came to the conclusion that oral partition
pleaded by the appellant has not been proved.
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S.A.No.301 of 2017
12. The learned counsel appearing for the appellant submitted
that the appellant improved the portion of the suit property in her possession
by putting up a residential house. It is also stated in respect of the remaining
land in her possession, she improved it by installing water sprinklers for the
purpose of cultivation. As far as improvements made by the appellant is
concerned, it is always open to her to work out equity in the final decree
proceedings. In fact, the First Appellate Court, while allowing the appeal
observed that the appellant/defendant is entitled to seek allotment of the
portion of the property in respect of which she had made improvements. Any
such request made by appellant regarding allotment of portion of the property
in respect of which she had made improvements, shall be considered by Court
below on its own merits in final decree proceedings. In such circumstances, I
do not find any error in the finding of facts rendered by the First Appellate
Court with regard to the oral partition pleaded by the appellant.
13. In view of the discussions made earlier, both the questions of
law framed at the time of admission are answered against the appellant and
consequently the Second Appeal stands dismissed.
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S.A.No.301 of 2017
14. In these circumstances,
(a) The Second Appeal is dismissed by confirming the judgment
and decree in A.S.No.23 of 2015, on the file of the learned Subordinate Court,
Dharapuram, dated 23.11.2016 and the judgment and decree in O.S.No.228
of 2012, on the file of the learned District Munsif Court, Kangayam, dated
23.02.2015.
b) In the facts and circumstances of the case, there shall be no
order as to costs; and
c) consequently, connected Miscellaneous Petition is closed.
03.10.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
ub
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S.A.No.301 of 2017
To
1. The Subordinate Court,
Dharapuram.
2.The District Munsif Court,
Kangayam.
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S.A.No.301 of 2017
S.SOUNTHAR, J.
ub
S.A.No.301 of 2017
03.10.2023
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