Madras High Court
C.Nagappan vs C.Mahendran on 22 October, 2024
2024:MHC:3753
S.A.NO.304 OF 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.304 OF 2018
AND CMP NO.8438 OF 2018
C.Nagappan ... Appellant / Appellant /
Defendant
Versus
C.Mahendran ... Respondent / Respondent/
Plaintiff
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
February 10, 2017 made in A.S.No.16 of 2015 on the file of the IV
Additional District Court, Erode District at Bhavani confirming the
Judgment and Decree dated September 2, 2015 made in O.S.No.9 of 2012
on the file of the Sub Court, Bhavani.
For Appellant : Ms.Zeenath Begum
For Respondent : Mr.Arshadullah Sheriff
for M/s.A.L.Shanmugavel
JUDGMENT
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S.A.NO.304 OF 2018
This Second Appeal is directed by the unsuccessful defendant,
assailing the Judgment and Decree dated February 10, 2017 passed in
A.S.No.16 of 2015 by the 'learned IV Additional District Judge, Erode at
Bhavani' [henceforth 'First Appellate Court' for brevity and convenience]
whereby the Judgment and Decree dated September 2, 2015 passed in
O.S.No.9 of 2012 by the 'learned Subordinate Judge, Bhavani' [henceforth
'Trial Court' for brevity and convenience] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
Plaintiff's Case:
3. The defendant is the elder brother of the plaintiff. The Suit
Property is joint family property of both, the plaintiff and the defendant,
allotted under a registered Family Partition Deed dated July 14, 1973. The
defendant being the Karta of the family has been managing the affairs of
the family and the Suit Property. There arose some misunderstanding, and
hence, the plaintiff demanded for an amicable partition on November 16,
2011, but the defendant did not agree for the same. Hence, the plaintiff
issued a legal Notice on November 19, 2011 to the defendant. The
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S.A.NO.304 OF 2018
defendant issued a reply Notice on November 26, 2011 containing false
allegations. During the year 1975, the plaintiff, defendant and their mother
sold a portion of the joint family property obtained in the partition for
discharge of the joint family debts. Therefore, the said Sale binds the
defendant also. The defendant was working as a Village Menial and
unscrupulously manipulated and created revenue records in his favour.
Since defendant is the Karta of the joint family, the revenue records stand
in his name. However, the defendant cannot claim absolute and adverse
title solely on the basis of the revenue records. Hence, the plaintiff filed a
Suit for partition seeking to divide the Suit property into two equal shares
and for allotment of one such share to the plaintiff.
Defendant's case:
4. The defendant filed a Written Statement admitting that the
Suit Property, measuring an extent of 5 Acre 6 Cents in Survey No. 275 of
Mayilambadi Village, was allotted to the plaintiff and the defendant jointly
as 'C' Schedule property under a registered Partition Deed dated July 14,
1973. Subsequently, the plaintiff and the defendant had further partitioned
the above said property, through an Oral Partition in the year 1974. In the
said Oral Partition, the Suit property was allotted to the defendant and an
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S.A.NO.304 OF 2018
extent of 1 Acre 86 Cents in Survey No.275 was allotted to the plaintiff,
which the plaintiff later sold by describing four boundaries to one Palani
Gounder vide registered Sale Deed dated July 7, 1975. Since the said Oral
Partition, the defendant alone is in possession and enjoyment of the Suit
Property continuously and uninterruptedly with an absolute title over the
same and by paying the Kist also. The plaintiff has no manner of right,
possession or interest over the Suit Property. The defendant has helped the
plaintiff financially and spent a sum of Rs.2,00,000/- (Rupees Two Lakhs
Only) for his education. Also, the defendant has taken care of and
maintained their mother till her death. The plaintiff and the defendant were
never in joint possession and enjoyment over the Suit Property at any point
of time after the Oral Partition. The defendant never being the Karta of the
family, never managed the affairs of the family. Therefore, the Suit
Property was never joint family property at all post the said Oral Partition,
and absolutely belonged to the defendant. The revenue records for the Suit
Property such as Chitta, Patta and Adangal etc., all stand in the name of the
defendant. Hence, the plaintiff has no manner of any right or share over the
Suit Property under the provisions of law. Accordingly, he prayed for
dismissal of the Suit with costs.
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S.A.NO.304 OF 2018
Trial Court:
5. At trial, the plaintiff was examined as P.W.1 and Ex-A.1 to
Ex-A.4 were marked on the side of the plaintiff. The defendant was
examined as D.W.1 and Ex-B.1 to Ex-B.8 were marked on the side of the
defendant.
6. The Trial Court, after considering the documents and
evidence, came to the conclusion that the plaintiff and the defendant were
each entitled to 2 Acres 53 Cents in Survey No.275 (Resurvey No.379) and
that the plaintiff had sold an extent of 1 Acre 86 Cents vide Ex-B.1 – Sale
Deed dated July 7, 1975. Hence the plaintiff is having a remaining extent
of 67 Cents in the Suit property. There is no sufficient evidence available
on record to conclude that the defendant acquired title by adverse
possession. Accordingly, the Trial Court passed a preliminary Decree for
an extent of 67 Cents in the Suit Property in favour of the plaintiff.
First Appellate Court:
7. Feeling aggrieved with Judgment and Decree passed by the
Trial Court, the defendant preferred an appeal in A.S.No.16 of 2015 before
the First Appellate Court. The First Appellate Court after considering the
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S.A.NO.304 OF 2018
materials available on record, held that the plaintiff is estopped from
contending otherwise than in the recitals of Ex-B.1; that there was an Oral
Partition between the plaintiff and the defendant; that the defendant
miserably failed to establish that he was in possession and enjoyment of
the entire Suit Property excluding the plaintiff; that recitals in Ex-B.1
would show that the plaintiff has some land in the Suit Property.
Accordingly, the First Appellate Court concurred with the decision of the
Trial Court and dismissed the appeal.
Second Appeal:
8. Feeling aggrieved with the concurrent findings recorded by
the First Appellate Court as well as the Trial Court, the defendant has
preferred this Second Appeal under Section 100 of the Code of Civil
Procedure, 1908.
9. This Second Appeal was admitted on June 4, 2018 on the
following Substantial Questions of Law:
“1.When the Courts below have categorically found that
there has already been an oral partition between the appellant
and the respondent and it is not the case of the respondent that
there was only a partial partition of properties, whether the
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S.A.NO.304 OF 2018
judgments of the Courts below are vitiated in that they have
granted a decree for partition?
2.When a finding has been given regarding severance of
status, whether a cause of action arises for instituting a suit for
partition?”
Arguments:
10. The learned Counsel for the appellant / defendant submits
that there was an Oral Partition between the plaintiff and the defendant,
wherein an extent of 1 Acre 86 Cents was allotted to the plaintiff and
remaining extent i.e., 3 Acres 20 Cents was allotted to the defendant. He
further submits that the plaintiff left for the City to pursue higher studies
and thereafter, he got job in Government service. Hence, the plaintiff sold
his share allotted in the Oral Partition vide Ex-B.1 – Sale Deed. The
plaintiff has no right in the Suit property after execution of Ex-B.1 – Sale
Deed, the recitals whereof would clearly establish the factum of Oral
Partition. The plaintiff suppressed the aforesaid factum and filed this Suit
as if the plaintiff has right in the Suit Property. He further submits that on
and after the Oral Partition i.e., since the year 1974, the defendant has been
in continuous, exclusive and uninterrupted possession over the Suit
Property. The revenue records namely Patta, Chitta and Adangal all stand
in the name of the defendant. The Trial Court as well as the First Appellate
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S.A.NO.304 OF 2018
Court failed to appreciate the said evidence in right perspective and
decreed the Suit for an extent of 67 Cents in the Suit Property which is
erroneous. Accordingly, he prays to allow the appeal.
11. Per contra, learned Counsel for the respondent / plaintiff
submits that in Ex-B.1 – Sale Deed itself, it has been specifically stated
that the plaintiff retained some land in the Suit Property which would show
that in the Oral Partition, an extent of 2 Acres 53 Cents was allotted to each
of them. Hence, the Trial Court as well as the First Appellate Court has
rightly concluded that the plaintiff is having an extent of 67 Cents in the
Suit Property and accordingly, passed a preliminary Decree in which there
is no warrant of interference by this Court. Accordingly, he prays to
dismiss the Second Appeal.
Discussion:
12. This Court has considered the submissions made on either
side and perused the materials available on record.
13. Admittedly, an extent of 5 Acres 6 Cents was allotted to
the plaintiff and the defendant in the registered partition as 'C' Schedule
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property under Ex-A.1. Thereafter, according to the plaintiff, the plaintiff
sold an extent of 1 Acre 86 Cents for the purpose of clearing family debts
vide Ex-B.1 – Sale Deed and the plaintiff and the defendant has been in
joint possession and enjoyment of the remaining extent of 3 Acres 20
Cents i.e., Suit property. According to the defendant, subsequent to Ex-A.1,
an Oral Partition took place between the plaintiff and the defendant,
whereby an extent of 1 Acre 86 Cents alone was allotted to the plaintiff
and the remaining extent, which constitutes the Suit Property, was allotted
to the defendant. This Court has perused Ex-B.1 – Sale Deed. In Ex-B.1 –
Sale Deed, it is specifically stated that the property described therein was
orally allotted to the plaintiff. Notably, in Ex-B.1 – Sale Deed, the
defendant also has signed as one of the witnesses. This confirms that an
Oral Partition took place between the plaintiff and the defendant prior to
execution of Ex-B.1 – Sale Deed. Hence, the plaintiff is estopped from
contending otherwise by way of Deed of Estoppel.
14. Generally in a Partition between brothers / co-owners, the
property will be divided equally for the reason that they have equal right
thereof. In this case, the defendant takes a stand that the property was
unequally divided giving larger extent to the defendant for the reason that
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the defendant spent for plaintiff’s education and took care of their mother
as well. In such a scenario, the burden is upon the defendant to prove his
assertion that he was allotted a larger extent viz., 3 Acres 20 Cents in the
Oral Partition as per Section 103 of Indian Evidence Act, 1872.
15. The defendant did not adduce sufficient evidence nor
examined independent witnesses to prove the extent allotted in the Oral
Partition. The defendant failed to discharge the burden on him
satisfactorily. On the other hand, Ex-B.1–Sale Deed, wherein the defendant
has signed as a witness, would show that the plaintiff sold the property
covered thereunder while retaining some portion of land in the Suit Survey
number. Hence, the plaintiff still has right over the Suit Property.
16. It is true that the revenue records in Ex-B.2 to Ex-B.5
viz., Patta, Chitta and Adangal etc., were jointly issued in the names of the
defendant and others, and that the plaintiff's name does not appear in the
aforesaid revenue records. Admittedly, the plaintiff had been residing
outside his native place. He had been working in various places across
Tamil Nadu. It is natural for the revenue records namely Patta, Chitta and
Adangal etc., to be in the name of the defendant alone, who resides in the
native. Mere fact that these revenue records are in the defendant's name
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does not entitle him to deny the plaintiff's rights over Suit Property.
17. Since the defendant failed to discharge the burden casted
upon him, this Court is of the view that the joint family property would
have been most probably equally divided in the said Oral Partition and the
parties would have been allotted 2 Acre 53 Cents each. In these
circumstances, the findings of the Trial Court as well as the First Appellate
Court are correct and there is no need to interfere with the same.
18. It is true that the plaintiff ought to have filed a Suit for
declaration and recovery of possession instead of one for Partition. Though
in stricto sensu a partition Suit would not lie after severance of status, the
effect of outcomes of both viz., Suit for declaration and recovery of
possession instead of one for Partition in this case, would be the same. As
regards Court Fee, the plaintiff paid a fixed Court Fee of Rs.750/- under
Section 37 (2) of the ‘Tamil Nadu Court-Fee and Suits Valuation Act,
1955’ ['TNCF Act' for short]. The Suit Property being agricultural land, if
the Suit is valued for declaration and recovery of possession under Section
25 (a) of TNCF Act, the Court Fee payable would be less than that paid by
the plaintiff for the reason that the then Section 7 of TNCF Act prescribed
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the market value of agricultural land as 30 times the Survey Assessment on
the land. Hence, there is no revenue loss to the State. Hence, considering
the facts and circumstances of this case, bearing in mind that process of
adjudication involves not only adjudication of law but also justice, with a
view to avoid multiplicity of proceedings and in the interest of justice, this
Court is of the view that the concurrent findings of the Trial Court as well
as the First Appellate Court need not be disturbed. The Substantial
Questions of Law are answered accordingly in favour of the plaintiff.
Result:
19. In fine, the Second Appeal is dismissed. The Judgment
and Decree of the Trial Court as well the First Appellate Court are hereby
confirmed. Considering the facts and circumstances of the case, there shall
be no order as to costs. Consequently, connected Civil Miscellaneous
Petition is closed.
22.10.2024
Index : Yes
Neutral Citation : Yes
Speaking Order : Yes
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S.A.NO.304 OF 2018
TK
To
1.The IV Additional District Judge
IV Additional District Court
Erode District at Bhavani.
2.The Sub Judge
Sub Court
Bhavani.
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S.A.NO.304 OF 2018
R.SAKTHIVEL, J.
TK
S.A.NO.304 OF 2018
22.10.2024
https://www.mhc.tn.gov.in/judis
