Madras High Court
R.Ganapathi vs Munusamy Reddy (Died) on 19 February, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.106 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.02.2025
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.106 of 2025
Gnana Sundari (died)
A.K.Raja Badhar (died)
1. R.Ganapathi
2. R.Govindaraj
3. R.Srinivasan
4. Sathi Palanivelu
... Appellants
Vs.
Munusamy Reddy (died)
1. Ekambaram
Logammal (died)
2. Pachiammal
.. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, praying to set aside the judgment and decree dated 09.08.2021
1/8
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S.A. No.106 of 2025
passed in A.S.No. 7 of 2012 on the file of the IV Addl. District and Sessions
Court, Ponneri confirming the fair and decreetal order passed in O.S.No.59
of 1987 dated 14.07.1992 on the file of Sub-Court, Thiruvallur.
For Appellants : Mr.S.Udhaya Kumar
JUDGMENT
The appellants are the legal heirs of original plaintiff Gnanasundari
and challenging the concurrent findings of the courts below rendered in
judgment and decree passed in A.S.No. 7 of 2012 by the IV Addl. District
and Sessions Judge, Ponneri arising out of trial court findings rendered in
judgment and decree passed in O.S.No.59 of 1987 on the file of Sub-Court,
Thiruvallur, they have preferred this Second Appeal.
2. For the sake of convenience, the parties are referred as per the
ranking in the suit.
3. Before the trial court, the Gnana Sundari filed a suit seeking for the
relief of partition in the suit property against the defendants 1 to 3 stating
that originally the entire property belongs to Arumuga Reddy, who died
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intestate leaving behind his two sons viz., Munuswamy Reddy and Nataraja
Reddy. The plaintiff is the daughter of Nataraja Reddy. After her father's
death, she along with defendants enjoyed the properties jointly. The 1st
defendant Munuswamy Reddy is the brother of plaintiff's father and the 2nd
and 3rd defendants are his son and wife. The claim of plaintiff is with respect
of total extent of 12 acres of the suit property, which belongs to her
grandfather Arumuga reddy, in which her father's share is 6 acres. But, the
1st defendant refused to give share and enjoyed entire extent of property.
4. As per the written statement submitted by the defendants, they have
admitted the relationship as well as original extent of 12 acres and it was
owned by 1st defendant's father Arumuga Reddy, who died leaving behind
his two sons Nataraja Reddy (plaintiff's father) and 1st defendant. According
to the 1st defendant, already the parties have orally partitioned the property,
in which, 6 acres was allotted to Nataraja Reddy and 6 acres was allotted to
Munusamy reddy. Subsequently, 6 acres allotted to Nataraja Reddy was
already sold and share allotted to the 1st defendant was under his enjoyment.
5. Before the trial court, both parties adduced evidence and the suit
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property was shown as 15 items in 'A' schedule, tiled house and house site
in 'B' Schedule and movables in 'C' and 'D' schedule. Considering both side
evidence, the trial judge dismissed the suit stating that already the property
was partitioned, in which the plaintiff's father was given half share and the
same was sold by relying the evidence of P.W.1. Accordingly, the suit was
dismissed. Against which, an Appeal Suit in A.S.No. 7 of 2012 was
preferred by the plaintiff along with an application in I.A.No.9 of 2015
seeking to receive additional documents in order to establish that not entire
property was sold by her father, but the said additional document was not
accepted by the first appellate judge and held that already revenue records
mutated in the name of 1st defendant Munuswamy Reddy, which itself
shows that already partition was effected. Accordingly, the first appellate
judge confirmed the findings of the trial judge and dismissed the suit.
Challenging the concurrent findings of the courts below, the legal heirs of
original plaintiff have preferred this Second Appeal.
6. The learned counsel for appellants would submit that before the
trial court, the counsel on record failed to produce relevant documents
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though the plaintiff had instructed, but now they are holding Patta and
relevant documents. Further, he would submit that entire extent comes
around 9 acres 99 cents as described in the plaint schedule was under the
enjoyment of 1st defendant/Munuswamy Reddy by obtaining Patta without
consent of plaintiff. To that effect, the plaintiff is inclined to produce the
relevant revenue records.
7. Heard and considered the submissions of learned counsel of
appellants and perused the materials available on record.
8. Considering the said submissions and on perusal of suit schedule,
the property in Survey No. 9/1C comes around 9 acres 99 cents. It is an
admitted fact that originally Arumuga Reddy owned nearly about 10 ½
acres. The 1st defendant is the one of sons of Arumuga Reddy. Though he
was shown as 1st defendant, he has not entered into witness box, however, in
the written statement, he has stated that already oral partition was effected
between himself and his brother Nataraja Reddy. Considering the said
defence, when the Munuswamy Reddy was alive he was the right person to
speak about oral partition, but he failed to enter into the witness box. Now,
as on date, he was dead. It is the settled proposition that the person, who
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pleaded oral partition is bound to prove, but before the trial court, no such
evidence adduced on the side of defendants. Now, appellants are inclined to
produce the Patta and other revenue records to prove right and title of
Arumuga Reddy as well as right of original plaintiff's father Nataraja Reddy.
Since from the year of 1987 onwards, the plaintiff is approaching the court
seeking relief of partition, but she is not able to realise the fruits of the
decree. As on date, appellants are having valid document of 'A' register
extract along with patta, chitta and other revenue records in order to
establish plaintiff's right and title and also to have partition in the suit
property. But, the court below not permitted plaintiff to prove her right and
title over suit property. Moreover, trial court has not properly appreciated
evidence on record adduced and the same was also confirmed by the first
appellate court, which needs interference as the facts are not properly
appreciated. When there is no proper appreciation of facts, this Court is
inclined to cause interference. Therefore, the findings rendered by the courts
below is liable to be set aside and it is liable to be remanded back to the trial
court for fresh trial. Accordingly, findings of both courts below rendered in
O.S.No.59 of 1987 by the Sub-Judge, Tiruvallur as well as in A.S.No. 7 of
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2012 by the IV Addl. District and Sessions Judge, Ponneri is set aside and
the suit is remanded back to the trial court. The trial court is directed to
issue notice to the defendants and give opportunity to produce their
witnesses and also give opportunity to adduce documentary evidence on
both sides and thereafter, on considering the evidence on record, the trial
judge is directed to give fresh disposal in the suit in O.S.No.59 of 1987
within a period of six months from the date of receipt of copy of this
judgment, since the suit is pending before the court from the year of 1987
onwards. Accordingly, this Second Appeal is disposed of. No costs.
19.02.2025
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
IV Addl. District and Sessions Judge,
Ponneri.
T.V.THAMILSELVI, J.
rpp
https://www.mhc.tn.gov.in/judis
19.02.2025
https://www.mhc.tn.gov.in/judis
