Madras High Court
Duraisamy Gounder vs Ponnusamy (Died) on 4 November, 2024
2024:MHC:3817
S.A.No.1009 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2024
CORAM:
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
S.A.No.1009 of 2016
Duraisamy Gounder ... Appellant
Vs.
Ponnusamy (died)
Kanniyammal (died)
1.Chinnappan
2.Chinnapappammal
3.Rajendran
4.Anandhan
5.Settammal
6.Muniyammal
7.Salammal
8.Somu
9.Gopi
10.Jothi
11.Chandran
Rajammal (died)
12. Kullammal
13.Dhanammal
14.Margandam
15.Salammal
https://www.mhc.tn.gov.in/judis
1/12
S.A.No.1009 of 2016
16.Rosi
17.Mangammal
18.Murali
19.Muniraj
20.Amul
21.Minor Velu @ Velmurugan
22.Chinnapappammal
23.Chinnaponnu @ Kamala
24.Nandhagopal
25.Jaishankar
26.Moorthi
27.Palani
28.Govindammal
29.Nadhiya ... Respondents
PRAYER: Second Appeal is filed under Section 100 of C.P.C against the
Judgement and Decree dated 15.04.2016 made in A.S.No.12 of 2012 on the file
of the Sub Court, Gudiyattam, Vellore District in confirming the Judgement and
Decree dated 31.01.2012 made in O.S.No.577 of 1995 on the file of the District
Munsif Court, Gudiyattam, Vellore District.
For Appellant : Mr.T.Dhanyakumar
For Respondents : No appearance
for RR1,4,6 to 11,17 to 29
: Refused for RR2 to 5
:Mr.L.Ramu for RR12 to 16
https://www.mhc.tn.gov.in/judis
2/12
S.A.No.1009 of 2016
JUDGEMENT
This Second Appeal has been preferred against the judgement and
decree passed in A.S.No.12 of 2012, on the file of the Sub Court, Gudiyattam,
Vellore District, dated 15.04.2016 in confirming the judgement and decree
dated 31.01.2012 made in O.S.No. 577 of 1995, on the file of the District
Munsif Court, Gudiyattam, Vellore District.
2. The plaintiff is the appellant and he has filed the suit for partition of
1/4th share in the suit property and the suit has been dismissed. The Appeal
preferred by the plaintiff was also dismissed and hence he has filed this second
appeal.
3. The short facts pleaded in the plaint of the 1st plaintiff runs as
under:
The deceased 2nd plaintiff is the mother of the 1st plaintiff. The suit
property originally belonged to one Oratakai Gounder, who is the paternal
grandfather of the 1st plaintiff and he died intestate by leaving his four sons.
One of the sons of the deceased Oratakai Gounder is the plaintiff's father,
Govinda Gounder. Hence the plaintiff's father has got 1/4 share in the suit
https://www.mhc.tn.gov.in/judis
property, and he was in enjoyment of the same along with his other three
brothers. One of the brothers by name Muruga Gounder also died intestate by
leaving the defendants 1 to 3. The plaintiff's father also died intestate, leaving
the plaintiff and his mother as his legal heirs. The 4th and 5th defendants are
the legal heirs of the yet another son by name Mahadevan Gounder. The 6th
and 8th defendants are the legal heirs of the 4th son of the Oratakai Gounder by
name Appayee Gounder. As the defendants are not amenable to partition the
plaintiff's 1/4th share, he has filed the suit for partition and permanent
injunction.
4.The defendants have resisted the claim of the plaintiff by making
the following avernments in their statements:
The suit properties are not the properties that belonged to the 1st
plaintiff's paternal grandfather, Oratakai Gounder. The plaintiffs are the 3rd
parties to the suit properties, and hence they do not have 1/4th share in the suit
as claimed. The suit property and other properties are 'tharkaths' lands, and
Muruga Gounder was in possession of the same by encroaching it along with
the other properties. As he was in enjoyment for more than 60 years, he has got
a patta from the government in his name. Muruga Gounder had died by leaving,
https://www.mhc.tn.gov.in/judis
defendants 1 to 3 as his legal heirs. The defendants 1 to 3 have entered into an
oral partition subsequent to the death of their father, Muruga Gounder. In the
said oral partition developed in the suit property comprising 4 acres and 27
cents has been partitioned and an extent of 1 acre and 98 cents have been
allotted to defendants 2 and 3. The rest of the properties have been allotted to
the 1st defendant. As the plaintiff did not have any right over the suit property,
the plaintiffs cannot claim any right over the same. In fact, in the earlier suits
filed by the plaintiffs in OS.Nos.164/1993 and 157/1993 also, the plaintiffs
admitted the possession and enjoyment of the 1st defendant over 1 acre and 98
cents in the suit property. The suit is bad for no joinder of necessary parities.
The plaintiff has got a sister by name Rajammal and she has not been
impleaded as a party, though she is a necessary party. As the 1st defendant had
never been in possession and enjoyment of the suit property along with the
plaintiff, the plaintiff is not entitled to the relief as prayed. The written
statement of the 1st defendant is adopted by the defendants 2 and 3 by denying
the entitlement of the plaintiff to claim the relief of partition.
5. During the course of trial, on the side of the plaintiff, three witnesses
have been examined as P.Ws.1 to 3 and Exs.A1 to A3 were marked. On the side
https://www.mhc.tn.gov.in/judis
of the defendants, one witness has been examined as DW.1 and Exs.B1 to B4
were marked.
6. After the conclusion of the trial, the Trial Court has dismissed the suit.
The First Appeal filed by the plaintiff also confirmed the judgment of the trial
Court and dismissed the First Appeal. Now the Second Appeal has been filed
and it has been admitted on the following substantial questions of law:
"1.Whether the decisions of the Courts below are vitiated in
holding that the contesting defendants have proved their title
and exclusive possession without filing any title and exclusive
possession without filing any title documents or revenue
records except Exs.B1 to B4.?
2.Whether the admission made in Exs.B1 to B4 is binding on
the plaintiff and further on the basis of the admission, the title
of the contesting defendants can be declared?
3.Whether the Courts below have committed an error in not
applying the discretion under Section 58 of the Indian
https://www.mhc.tn.gov.in/judis
Evidence Act by directing the contesting defendants to prove
the facts otherwise than by admission covered under Exs.B1 to
B4.?"
7. The learned counsel for the appellant submitted that the Courts below
have not appreciated the evidence of Ex.B1 to Ex.B4 that they would bind the
defendants and the contents in Ex.B1 to Ex.B4 would amount to admission
made by the defendants. It is further submitted that the Courts below did not
appreciate the admitted facts in light of Section 58 of the Indian Evidence Act
and hence the judgment of the First Appellate Court is liable to be reversed.
8. The very contention of the appellant is that the suit property originally
belonged to his paternal grandfather by name Oratakai Gouner. According to
the appellant/plaintiff, the suit property is poramboke land, under which
Oratakai Gounder was in enjoyment for a very long period and in view of that,
he was given a patta by the government.
9. It is claimed that plaintiff's father is entitled to 1/2 share in the suit
https://www.mhc.tn.gov.in/judis
property as he is one of the sons of the deceased Oratakai Gounder. As the
appellants/plaintiffs had tried to trace title only from his paternal grandfather,
Oratakai Gounder, the plaintiffs ought to have produced some documents to
show that Oratakai Gounder had been in an enjoyment as alleged by the
appellant and the patta was also standing in his name.
10. The appellant did not claim that he had produced any documents
showing the alleged interest of his grandfather, Oratakai Gounder. The plaintiff
has produced only three documents, as Exs.A1 to A3. Ex. A1 is a patta which is
standing in the name of his mother and Ex.A2 is a tax receipt in the name of his
mother and Ex.A3 is a tax receipt which is standing in the name of one
Duraisamy Gounder and the relevancy of which is not known.
11. In fact, the 1st plaintiff has already filed a suit in OS.No. 164/1993,
claiming the relief of permanent injunction against one Pachiyappa Gounder
and the subject matter of the said suit would be 1 acre 98 cents in S.F.No.292/4
which is part of the whole of the suit property measuring 4 acre 71 cents. In the
written statement filed by the defendant in the said suit, it is stated that the
property belongs to them situate on the western side of the property involved in
https://www.mhc.tn.gov.in/judis
OS.No.157/1993.
12. Having admitted that the property of the plaintiff is situated on the
western side of 1 acre 98 cents in S.F.No.292/4, the pleadings filed in
OS.No.157/1993 the plaintiff has claimed his right to lay pipelines on the
eastern side of 1 acre 98 cents, belonging to the 1st defendant. Having taken
such a plead in the earlier suit, the appellant is estopped to claim the whole of 4
acre 78 cents in S.F.No.292/4 by stating that it belonged to Oratakai Gounder.
13.The trial court has made a specific observation that the UDR patta for
S.F. No. 292/4 stood in the name of Muruga Gounder and Pachaiyappa
Gounder. Even according to the plaintiff, Muruga Gounder is the father of
defendants 1 to 3, and Pachaiyappa Gounder is the 1st defendant. So the patta
for the property stood in the name of 1st defendant and Muruga Gounder. In the
above suit, the 1st defendant, Pachaiappa Gounder [who is also 1st defendant in
this suit], has stated that the whole of 4 acres 78 cents in S.F.No.292/4 belonged
to his father, Muruga Gounder and the plaintiff got 1 acre 98 cents out of the
same towards his share.
https://www.mhc.tn.gov.in/judis
14. In fact, the 1st defendant has also already filed another suit in
OS.No.292/2002 and O.S.No.157/1993 against the plaintiff for seeking some
relief. Having filed a written statement in O.S.No.157/1993 by admitting the
title of the 1st defendant to the extent of 1 acre 98 cents, the appellant/1st
plaintiff has taken a contrary stand. Hence, the Trial Court has rightly applied
the principle of estoppal against the appellant.
15. As the plaintiff has admitted the above facts in the earlier
proceedings, the learned Trial Judge has rendered a finding that the defendants
did not have any obligation to prove the admitted facts. The Appellate Court
also rightly appreciated the application of the principle of estoppal as
prescribed under Section 115 of the Indian Evidence Act against the appellant/
1st plaintiff and confirmed the judgment of the Trial Court. As the plaintiff has
not proved the foundational fact that the property belonged to his paternal
grandfather and that his father had 1/4 share after the demise of the grandfather,
the Courts below cannot be found fault in their findings rendered against the
appellant/plaintiff.
16. So far as the Ex.B1 to B4 are concerned, those documents stand
https://www.mhc.tn.gov.in/judis
against the appellants/plaintiffs as they are the judgments and decree passed in
the earlier proceedings where the appellant/plaintiff was also a party. As it
is right for the courts below to accept the same as admission against the
appellant/1st plaintiff, I don't find any perversity or illegality in the
appreciation.
17. In the result, this second Appeal stands dismissed and the Judgement
and Decree of the Sub Court, Gudiyattam, Vellore District, dated 15.04.2016
made in A.S.No.12 of 2012 is confirmed. No costs. consequently, the connected
miscellaneous petition is closed, if any.
04.11.2024
Index : Yes/No
Speaking/ Non-Speaking
Internet: Yes/No
Neutral: Yes/No
jrs
To,
1. The Sub Court, Gudiyattam, Vellore District
2. The District Munsif Court, Gudiyattam, Vellore District.
3. The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
jrs
04.11.2024
https://www.mhc.tn.gov.in/judis
