Madras High Court
Selvaraj vs Pachaiyammal on 17 October, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.451 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.451 of 2024
and
C.M.P.No. 13722 of 2024
Selvaraj ... Appellant
Vs.
1. Pachaiyammal
2. Arumugam
3. Thangavel
4. Ramesh
5. Dhurai
6. Sasikumar .. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.46 of
2021 dated 19.09.2023 on the file of I Addl. District Judge, Namakkal
confirming the judgment and decree in O.S.No.50 of 2014 dated
26.11.2020 on the file of Sub-Judge, Rasipuram.
1/6
https://www.mhc.tn.gov.in/judis
S.A. No.451 of 2024
For Appellant : No appearance
For Respondents : Mr.P.Mathivanan for R1
Mr. S.Thangavel for R2
JUDGMENT
The appellant, who is 2nd defendant in the suit in O.S.No.50 of 2014,
which was filed by the 1st respondent/plaintiff seeking for the relief of
partition claiming 1/3rd share in the suit property and other consequential
relief and the same was decreed in favour of plaintiff. Against which, the
2nd defendant preferred an appeal in A.S.No.46 of 2021 on the file of I
Addl. District Judge, Namakkal and the same was also dismissed
confirming the findings of the trial court. Now, challenging the
concurrent findings of courts below, the 2nd defendant preferred this
Second Appeal.
2. Heard and considered the contentions of learned counsel for
respondents 1 and 2 and perused the materials available on record.
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3. Before the trial court, the 1st respondent/plaintiff filed a suit
seeking for the relief of partition claiming 1/3rd share in the suit property
stating that the properties in item Nos. 1 to 4 is belong to Mariammal, her
mother by way of purchase and the properties in item nos. 5 and 6 is
belong to her father. Her mother died on 19.08.2003 intestate and
subsequently, her father also died on 13.02.2009. So, the legal heirs, the
plaintiff and defendants 1 and 2 are entitled 1/3rd share in the suit
property. But, the defendants refused to give share. Hence, the suit was
filed. Some of the property was leased out to tenants and 2nd defendant,
brother of plaintiff received the rent. Though there was a relinquishment
was pleaded on the side of plaintiff was not proved, finally the trial court
held that it is a joint family property, but it was not proved. Hence, the
trial court rejected the defence claimed by defendants and accordingly,
1/3rd share in the suit properties as well as measne profits was granted in
favour of plaintiff. Against which, the 2nd defendant preferred an appeal
in A.S.No. 46 of 2021 and the first appellate judge also confirmed the
findings of trial judge by independently analysing the facts and evidence
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on record. Furthermore, the first appellate judge held that the oral
partition was also not proved, since there is a contradiction on the
defence taken on the side of defendants 1 and 2 and accordingly,
dismissed the appeal by confirming the findings of trial judge.
Challenging the said concurrent findings of the courts below, the 2nd
defendant preferred this Second Appeal.
4. On perusal of records, it reveals that already the matter was
referred for mediation, wherein, he is not cooperating to settle the issue.
Today also, when the matter taken up for hearing, there is no
representation on the side of appellant. As discussed above, before the
trial court, the 2nd defendant/appellant has not proved the oral partition
and also not established the property as it is a joint family property.
Admittedly, item Nos.1 to 4 of suit properties belong to plaintiff''s mother
Mariammal and item Nos.5 and 6 of suit properties belong to his father.
Both the properties are self-acquired properties, in which the plaintiff is
entitled for 1/3rd share. Hence, I do not find any merit in this Second
Appeal as there is no substantial question of law involved. Accordingly,
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this Second Appeal is dismissed as devoid of merit. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
17.10.2024
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
I Addl. District Court,
Namakkal.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
rpp
17.10.2024
https://www.mhc.tn.gov.in/judis
