Madras High Court
Durairaj vs Mariammal (Died) on 6 January, 2025
Author: V.Sivagnanam
Bench: V.Sivagnanam
S.A.No.1498 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.01.2025
CORAM
THE HON'BLE MR.JUSTICE V.SIVAGNANAM
S.A.No.1498 of 2004
and
CMP(MD)No.16944 of 2024
1.Durairaj
2.Chinnathai
... Appellants
-vs-
1.Mariammal (died)
2.Madathi
3.Ganapathiammal
Gurusamy
S/o Late Mariammal (pre-deceased)
4.Muthusamy
5.Muppidathi
6.Muthumari
7.Dhanuskar
8.Keethiga Devi
(RR4 to 8 are brought on record as LRs of the
deceased R1 vide order dated 09.02.2024 made
in CMP(MD)Nos.15439 to 15441/2023) ..Respondents
PRAYER: Second Appeal filed under Section 100 Code of Civil
Procedure, against the Judgment and Decree made in A.S.No.50 of 2003
dated 08.10.2003 on the file of the Sub-Court, Sankarankoil confirming
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1/12
S.A.No.1498 of 2004
the Judgment and Decree made in O.S.No.194 of 2001 dated 23.04.2003
on the file of the Additional District Munsif Court, Sankarankoil.
For Appellants ... Mr.R.T.Arivukumar for
Mr.M.Senguvijay
For Respondents ... Mr.F.X.Eugene
(for R2 to R8)
JUDGMENT
The Second Appeal has been filed against the Judgment and
Decree passed in A.S.No.50 of 2003 dated 08.10.2003 on the file of the
Sub-Court, Sankarankoil, confirming the Judgment and Decree passed in
O.S.No.194 of 2001 dated 23.04.2003 on the file of the Additional
District Munsif Court, Sankarankoil.
2. For the sake of convenience, the parties are referred to as per
their ranking in the Trial Court.
3. The plaintiffs are the appellants. The plaintiffs filed the suit for
declaration and permanent injunction. The Trial Court dismissed the suit.
Aggrieved by this judgment and decree, the plaintiffs preferred an appeal
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before the Sub Court, Sankarankovil. Upon consideration of evidence on
record, the First Appellate Court confirmed the finding of the Trial Court
and dismissed the suit with costs. Aggrieved by this judgment and
decree, the plaintiffs preferred the present second appeal.
4. The case of the plaintiffs is that the plaint schedule properties
are originally owned by Ganapathy Kudumban and Anachi. They have
purchased the said property by way of a sale deed dated 11.07.1942 and
they partitioned the property orally and enjoyed the same separately.
Anachi, by way of oral partition deed, got 1 acre 53 cents. The said
Anachi had three daughters, namely, Vadakasi Ammal, Maruthi Ammal
and Karuppayee Ammal. After the death of the said Anachi, her three
daughters orally partitioned the property and enjoyed separately.
Vadakasi Ammal had one daughter by name, Mariammal. Mariammal
had one son by name, Durai Raj, who is the first plaintiff and one
daughter by name, Muthukani. Maruthi Ammal had three daughters by
name, Mariammal, Muthumadathi and Ganapathiammal, who are the
defendants. Karuppayee Ammal had two daughters by name,
Chinnathai, who is the second plaintiff and Ranjitham. The plaint
schedule properties were allotted by way of oral partition to the
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plaintiffs. Since the defendants disputed the title and interfered with the
possession and enjoyment of the plaintiffs, they filed the suit for
injunction and declaration with regard to the plaint schedule property.
5. The defendants contested the suit and filed the written
statement. In the written statement, the defendants admitted that the suit
property has been purchased by Ganapathy Kudumban and Anachi on
11.07.1942 by way of a sale deed dated 11.07.1942. The defendants have
not disputed the oral partition between Ganapathy Kudumban and
Anachi and they disputed the subsequent alleged partition between the
daughters of Anachi Ammal. Since they are jointly enjoyed the property,
in the absence of notice to the defendants, the plaintiffs got patta in their
name, for that, the defendants objected. Without sending any notice to
the defendants and without knowledge to the defendants, the plaintiffs
obtained patta and therefore, the plaintiffs cannot claim right over the
plaint schedule property and the plaintiffs are not entitled to the relief of
declaration of title over the plaint schedule property. Hence, the
defendants pleaded to dismiss the suit.
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6. On the basis of the above said pleas set out by the respective
parties, the following issues were framed by the Trial Court for
consideration:-
1. Is it correct that the first plaintiff is entitled to the plaint
1st schedule property?
2. Whether the relief of declaration and permanent
injunction sought for by the plaintiffs in respect of the
plaint 1st schedule property is available to the plaintiffs?
3. Is it correct that the second plaintiff is entitled to the
plaint 2nd schedule property?
4. Whether the relief of declaration and permanent
injunction sought for by the plaintiffs in respect of the
plaint 2nd schedule property is available to the plaintiffs?
5. To what other relief, the plaintiffs are entitled to?
7. Before the Trial Court, on the side of the plaintiffs, the first
plaintiff himself examined as P.W.1 and examined one Rajendran as
P.W.2 and marked eight documents as Ex.A1 to Ex.A8. On the side of
the defendants, the second defendant herself examined as D.W.1 and
marked four documents as Exs.B1 to B4.
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8. On consideration of the oral and documentary evidence adduced
by the respective parties and the submission made, the Trial Court found
that the property is not partitioned between the parties and they are
enjoying the property jointly and therefore, the plaintiffs are not entitled
for the relief of declaration and dismissed the suit. Aggrieved over the
same, the plaintiffs preferred an appeal before the Sub Court,
Sankarankovil. The First Appellate Court also upon consideration of
evidence on record confirmed the judgment and decree of the Trial Court
and dismissed the appeal. Aggrieved over the same, the plaintiffs filed
the present second appeal before this Court.
9. While admitting the second appeal, this Court has formulated
the following substantial questions of law:-
“1. Whether the Courts below are erred in
holding that the oral partition which took place 30
years ago was not proved since there is no evidence to
show that the persons who were present at the time of
partition are alive?
2. Whether both the Courts below failed to
consider Exs.A2, A3, A4 and A7 patta granted to the
parties to whom lands were allotted?
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3. Whether both the Courts below failed to
consider Exs.A.5, A.6 and A.8 which show that the
appellants have paid tax receipts to the lands?
4. Whether both the Courts below failed to note
that the respondents have not produced any records to
show that they paid tax to the suit property?
5. Whether both the Courts below failed to note
that adverse inference ought to have drawn against the
respondents since they did not produce any documents
to prove their title, possession and enjoyment?
6. Whether both the Courts below failed to note
that when the respondents have not produced any
documents to prove their title and possession, the suit
filed by the plaintiff ought to have been decreed?".
10. The learned counsel appearing for the appellants/plaintiffs
submitted that the Trial Court as well as the First Appellate Court failed
to consider the documents filed by the plaintiffs recognizing their
separate enjoyment and the patta has been issued by the Revenue
Department, which was marked as Exs.A1 to A4 and also failed to
consider the documents viz., payment of receipt filed by the plaintiffs
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Exs.A5 to A8. He further submitted that the Trial Court as well as the
First Appellate Court failed to consider the evidence of P.W.1 admitting
the oral partition between Ganapathy Kudumban and Anachi. Under
these circumstances, the judgment of the Trial Court as well as the First
Appellate Court is erroneous and not considering evidence on record and
hence, the learned counsel is seeking to allow the second appeal and
decree the suit.
11. The learned counsel for the respondents/defendants supported
the judgment and decree of the First Appellate Court and the Trial Court.
He further contended that the Trial Court as well as the First Appellate
Court on proper appreciation of evidence held that the plaintiffs are not
entitled to the relief of declaration and in the absence of proof of oral
partition between the parties the plaintiffs are not entitled for declaration.
There is no ground for interference of the finding of the First Appellate
Court and the Trial Court. Hence, he pleaded to dismiss the second
appeal.
12. I have considered the matter in the light of the submissions
made by the learned counsel on both sides and perused the materials
available on records carefully.
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13.On perusal of the records, it is noticed that the property was
originally purchased by Ganapathy Kudumban and Anachi by way of
oral sale deed dated 11.07.1942, which is evidenced by Ex.A1 sale deed
dated 11.07.1942. This fact is not disputed. The contention that the
Ganapathy Kudumban and Anachi orally partitioned the above said
property purchased by them and each got 1 acre 53 cents and thus,
Anachi got 1 acre 53 cents is also not disputed by the parties. It is seen
that Anachi had three daughters namely, Vadakasiammal, Maruthi
Ammal and Karuppayee Ammal. Vadakasi Ammal had one daughter,
namely, Mariammal. The first plaintiff Durairaj is the son of the said
Mariammal. The second plaintiff is the daughter of Karuppayee Ammal.
The defendants are the daughters of the Maruthi Ammal. The above said
facts are not disputed. The daughters of the Anach, viz., Vadakasi
Ammal, Maruthi Ammal, Karuppayee Ammal are each entitled to 51
cents. In the 51 cents, their legal heirs are entitled. The fact is admitted
by the parties. Under these circumstances, the plaintiffs filed the suit for
declaration of title over the plaint schedule property. It is also not
disputed that the plaint schedule property was allotted to Anachi and her
daughters Vadakasi Ammal, Maruthi Ammal and Karuppayee Ammal are
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entitled to the same. Further, there is no evidence to support the pleading
that after the oral partition between Ganapathi Kudumban and Anachi,
the legal heirs of Anachi partitioned the property allotted to Anachi. The
plaintiffs pleaded that orally they partitioned the property and they are
enjoying separately. To support their arguments, they produced the patta
issued by the Revenue Department Exs.A2 to A4. Since the patta is only
recognizing the title and not a document for declaring the title of a
person, the Trial Court in its Judgment, in para 13 and 14 has observed
the said fact and considered and found that the parties are jointly entitled
to the property and there was no evidence for oral partition as stated by
the plaintiffs.
14. On perusal of the records, it is noticed that there is no clear
evidence about the oral partition between the legal heirs of Anachi as
stated by the plaintiffs. The evidence shows that the parties are enjoying
the properties for their convenience and there is no partition as pleaded
by them. Under these circumstances, the Trial Court rightly held that the
parties are jointly entitled to the properties. Therefore, declaration with
regard to the plaint schedule properties cannot be granted in favour of the
plaintiffs. Therefore, the Trial Court dismissed the suit. The First
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Appellate Court also rightly found that the plaintiffs failed to prove the
alleged oral partition between the parties. Under these circumstances,
the First Appellate Court confirmed the judgment and decree of the Trial
Court. I find no ground for interference. The parties are entitled to
partition and liberty is given to the parties to file the suit for partition and
workout their remedy in the manner known to law. The substantial
questions of law are answered accordingly.
15. In the result, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
06.01.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes
skn
To:
1.The Subordinate Judge, Sankarankovil.
2.The Additional District Munsif, Sankarankovil.
3.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.SIVAGNANAM, J.
skn
Judgment made in
and
06.01.2025
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