Madras High Court
Rajaraman vs Nagarathinam on 20 January, 2025
S.A.No.636 of 2 017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 19 / 10 / 2024
JUDGMENT PRONOUNCED ON : 20 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO. 636 OF 2017
AND
CMP NO.15691 OF 2017 IN S.A.NO.636 OF 2017
Rajaraman ... Appellant / Appellant /
Plaintiff
Vs.
1.Nagarathinam
2.Valarmathi
3.Jayalakshmi
4.Ravi
5.Sekar ... Respondents / Respondents /
Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
February 17, 2016 made in A.S.No.7 of 2014 by the Subordinate Court,
Thiruvarur confirming the Judgment and Decree dated March 24, 2014
made in O.S.No.28 of 2008 by the District Munsif cum Judicial
Magistrate Court, Nannilam.
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S.A.No.636 of 2 017
For Appellant : Mr.A.Arun Babu
For Respondents 1,2,4 & 5 : Mr.A.Muthukumar
For Respondents 3 : Died – Notice dispensed with
vide this Judgment.
JUDGMENT
The Second Appeal is directed by unsuccessful plaintiff
against the Judgment and Decree dated February 17, 2016 passed in
A.S.No.7 of 2014 by the 'Subordinate Court, Thiruvarur' ['First Appellate
Court' for brevity], whereby the Judgment and Decree dated March 24,
2014 passed in O.S.No.28 of 2008 by the 'District Munsif cum Judicial
Magistrate Court, Nannilam' ['Trial Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
3. The third defendant remained ex-parte throughout and it is
represented that she is no more. The appellant / plaintiff had filed a memo
dated March 3, 2022 and sought to dispense with the notice to her. Hence,
notice to her is hereby dispensed with.
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PLAINTIFF'S CASE
4. The plaintiff filed the Original Suit for partition claiming
that Item No.1 of Suit Properties belonged to plaintiff’s father - Nadesa
Vanniyar while Item No.2 is Nadesa Vanniyar’s lease hold properties
owned by third defendant - Jayalakshmi. Nadesa Vanniyar’s wife
predeceased him. Nadesa Vanniyar died intestate around 1992, leaving
behind his three sons - the plaintiff, the first defendant and second
defendant’s husband, Navarathinam. After Nadesa Vanniyar’s demise,
revenue records in respect of Item No.1 was mutated to the names of the
plaintiff, first defendant and the husband of the second defendant jointly.
As regards Item No.2, the plaintiff alone is in possession and enjoyment
of it as a cultivating tenant. However, the plaintiff preferred to partition
the same with defendants 1 and 2. The defendants 4 and 5 in collusion
with defendants 1 and 2, attempted to disturb the plaintiff’s peaceful
possession and enjoyment of the Item No.2 on March 29, 2008. Hence,
the Suit for partition of his 1/3rd share in Suit Properties.
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DEFENDANTS' CASE
5. The second defendant filed written statement which was
adopted by defendants 1, 4 and 5. The third defendant remained ex-parte
throughout.
6. In the written statement, it is averred that the Suit
Properties and other properties were orally partitioned 25 years ago
during the lifetime of Nadesa Vanniyar and that the parties have been in
exclusive possession of their respective shares since then. The plaintiff
has deliberately excluded other properties left by father – Nadesa
Vanniyar from the Suit; there are some more lease hold properties enjoyed
by father - Nadesa Vanniyar which belong to one Radhabai. It is false to
aver that the plaintiff alone is cultivating and enjoying the lease hold
properties post the demise of Nadesa Vanniyar. The plaintiff has never
cultivated Item No.2. Item Nos.1 and 2 were allotted to defendants 1 and
2 in the aforesaid Oral Partition while the plaintiff being the eldest son,
was allotted 350 Kuzhies of Nadesa Vanniyar’s self-acquired properties
and the lease hold properties that belonged to said Radhabai along with an
ancestral house and some other properties. Defendants 1 and 2 are in
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possession and enjoyment of the Item No.2 and paying the lease amount
in kind to third defendant.
6.1. On November 16, 2004, the first defendant purchased the
leasehold properties of an extent of 26 Cents in Survey No.117/1, 44
Cents in Survey No.117/3 and 20 Cents in Survey No.117/4 from the third
defendant. Thereafter, he sold an extent of 10 Cents in Survey No.117/1
and 5 Cents in Survey No.117/4 to fourth defendant. Further, the first
defendant is residing in a thatched house built by him in Survey No.117/3.
Similarly, the second defendant purchased leasehold properties of an
extent of 13 Cents in Survey No.117/4 and 77 Cents in Survey No.117/5.
Thus, all the properties contained in Item No.2 except an extent of 18
Cents in Survey No.117/3 had been purchased by the defendants 1 and 2.
6.2. Further, legal heirs / legal representatives of Nadesa
Vanniyar’s three deceased married daughters, are not added as parties to
the Suit and hence, it is bad for non-joinder of necessary parties. Further,
on March 15, 2005, the plaintiff caused a notice to the defendants
demanding partition of Suit Item No.2 as well as the lease hold properties
belonging to said Radhabai. However, the latter properties have not been
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added in the Suit. The Suit is bad for non-joinder of necessary properties
and party [Radhabai] as well as partial partition. Further, the plaintiff
supressed the Reply Notice sent by defendants 1 and 2. Further, the Suit is
not maintainable in the absence of a prayer for declaration in respect of
the Sale Deeds through which the defendants 1 and 2 purchased the lease
hold properties as null and void. Further, the Suit is barred under
limitation. Accordingly, the defendants sought to dismiss the Original
Suit.
TRIAL COURT
7. The Trial Court framed the following issues:
“1) Whether the plaintiff is entitled to 1/3 share in Suit
Properties?
2) To what other reliefs?”
7.1. To prove the plaintiff’s case, the plaintiff - Rajaraman
examined himself as P.W.1, and two other witnesses were examined as
P.W.2 and P.W.3, and Ex-A.1 to Ex-A.30 were marked. On the side of the
defendants, Defendant Nos.1, 2, 4 and 5 were examined as D.W.1 to
D.W.4 respectively and two other witnesses were examined as D.W.5 and
D.W.6, and Ex.B.1 to Ex-B.39 were marked.
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7.2. Upon hearing both sides and considering the evidence
available on record, the Trial Court concluded that the plaintiff failed to
prove his case while the defendants have established their case
satisfactorily. The Oral Partition is true and that is why the legal
representatives of the deceased daughters of Nadesa Vanniyar were not
added as parties and some properties allotted to plaintiff in the Oral
Partition were omitted. Accordingly, it dismissed the Suit.
FIRST APPELLATE COURT
8. Feeling aggrieved, the plaintiff filed an appeal in A.S.No.7
of 2014 before the First Appellate Court, which after hearing both sides
and perusing the documents available on record, concurred with the
findings of the Trial Court and dismissed the Appeal Suit.
9. Feeling aggrieved, the plaintiff has preferred this Second
Appeal.
ARGUMENTS:
10. The contentions of Mr.A.Arun Babu, learned Counsel for
the appellant / plaintiff can be summarised as below:
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(i) It is settled law that burden of proof always lies upon on the
person who sets up the plea of Oral Partition. The defendants
have failed to discharge the said burden.
(ii) Lease hold properties owned by Radhabai are not available for
partition and hence, the plaintiff did not add them in the Suit.
(iii) No issues were framed with regard to non-joinder of necessary
parties and partial partition. Hence, in the event of its
conclusion that the Suit is bad for non-joinder of necessary
parties and partial partition, the Trial Court ought to have
granted an opportunity to the plaintiff to cure the defect. Non-
joinder of necessary parties is not fatal to the Suit. Parties may
be impleaded at any point of time either at the instance of the
parties or suo moto by the Court.
(iv) The First Appellate Court and the Trial Court erred in
dismissing the Suit on technical grounds, without affording an
opportunity to cure the technical defects.
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10.2. He would pray to allow the Second Appeal, set aside
the Judgment and Decree of First Appellate Court as well as the Trial
Court, and decree the Suit.
10.3. He would rely on the following decisions in support of
his contentions:
(i) Judgment of Hon'ble Supreme Court in Chinthamani Ammal
-vs- Nandagopal Gounder, reported in (2007) 4 SCC 163;
(ii) Judgment of this Court dated April 26, 2019 in Annamalai
Padayachi -vs- Muthulakshmi, made in S.A.No.933 of 2005;
(iii) Judgment of this Court in N.Thirumuppa Gowder -vs-
Ponnusamy, reported in MANU/TN/1692/2014;
(iv) Judgment of this Court in Singaravel -vs- Murugesa Udayar,
reported in 2014 (1) CTC 797;
(v) Judgment of the Hon’ble High Court of Bombay in Sumitra
Anna Aware and Others Vs. Anusaya Rajaram Aware and
Others, reported in 2012 (3) Mh.L.J. 649.
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11. Mr.A.Muthukumar, learned Counsel for the Respondent
Nos.1, 2, 4 and 5 / Defendant Nos.1, 2, 4 and 5 would argue that
(i) There is a lot of variation between Ex-A.1 - Suit Notice and the
plaint pleadings. In Ex-A.1, totally 7 items of leasehold
properties were listed for partition. Among them Serial No.1 to
4 were owned by third defendant and Serial No.5 to 7 were
owned by the said Radhabai. However, in the plaint, Serial No.5
to 7 [Radhabai’s properties] were omitted and instead Suit Item
No.1 was added, which was not listed in Ex-A.1. Hence, the
Suit is bad for non-joinder of properties and partial partition.
(ii) Plea of Oral Partition can be inferred from the available
evidence and the conduct of the parties. Concurrent findings
were recorded by both the Courts that Oral Partition is proved.
(iii) There is no Substantial Questions of Law in this Second
Appeal.
11.2. He would pray to dismiss the Second Appeal, and
confirm the Judgment and Decree of First Appellate Court and the Trial
Court.
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11.3. He would rely on the Judgment of a learned Single
Judge of this Court in Alli Sekar alias Sekar -vs- Ramu, reported in 2020
MLJ 1 319.
DISCUSSION:
12. This Court has heard on either side and perused the
materials available on record.
Non-joinder of necessary parties
13. Admittedly, parties are Hindus and the ‘Hindu Succession
Act, 1956 ‘['H.S.Act' for short] is the applicable law. Nadesa Vanniyar
died intestate in 1992 leaving behind his four daughters, and three sons -
the plaintiff, first defendant and second defendant’s husband. The four
daughters were married and they passed away leaving behind their legal
heirs. Nadesa Vanniyar died intestate leaving behind Item No.1 of Suit
Properties as his separate properties. They would devolve upon his legal
heirs as per Section 8 of the H.S.Act. Children of predeceased daughters
comes under the category of Class-I heirs as per Section 8, but they have
not been added as parties to the Suit. There is no pleading as to when
Nadesa Vanniyar’s daughters passed away. Further there is no clarity with
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regard to nature and character of Item No.1 of Suit Properties in the hands
of Nadesa Vanniyar. In the plaint, it has been stated to be separate
properties but in the evidence as ancestral properties. In general, as per
Order I Rule 9 of Code of Civil Procedure, 1908, no Suit shall be defeated
for the reason of non-joinder of parties. But the said rule shall not apply in
case of a non-joinder of necessary party. In this regard, it is fruitful to
refer to the decision of this Court in T. Panchapakesan -vs- Peria
Thambi Naicker, reported in AIR 1973 Mad 133, wherein it was held that
as far as a Suit for partition and declaration is concerned, all the sharers /
interested persons are necessary parties and their non-joinder is fatal to
the Suit. Subsequently, the said Judgment was followed by this Court in
A. Ramachandra Pillai -vs- Valliammal (died), reported in (1987) 100
LW 486], relevant extract whereof reads thus:
“7.Though O.1, R.9 of the Code of Civil Procedure
provides that no suit shall be defeated by reason of mis-joinder
or non-joinder of parties and the Court may in every suit deal
with the matter in controversy so far as regards the rights and
interests of parties actually before it, there is a proviso which
says that nothing in that rule will apply to non-joinder of
necessary parties. In a suit for general partition, there could
be no doubt that all the sharers are necessary parties as
mentioned above. Apart from this, the main part of R.9 is only
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an enabling provision and the Court shall deal with each case
with reference to the particular facts in that case. It is in that
context, the decision of the Supreme Court
in Kanakarathnammal v. Loganatha1, is relevant. In that case,
also, the plaintiff filed a suit for declaration and possession on
the ground that the properties belonged to her mother and on
her death she, as the sole heir, was entitled to the entirety of
the properties. The suit was filed against two defendants who
claimed that the father of the plaintiff had executed a will
under which the first defendant had been appointed as
executor and that as such executor he obtained probate of the
said will, got possession of the properties and handed over
possession to the second defendant therein as directed in the
will. Thus the defendants set up a title in respect of the suit
properties in the appellant's father. Alternatively they also
added that if the properties belonged to the plaintiff's mother,
she would not be entitled to claim exclusive title to the same,
because by succession, the suit properties would devolve upon
the appellant and her two brothers and the appellant's failure
to join her brothers made the suit incompetent for nonjoinder
of necessary parties. The trial Court held that the mother was
the owner of the properties. However, it held that the suit is
bad for non-joinder of necessary parties and on that ground
the suit was dismissed. On appeal however, the High Court
held that the properties belonged to the father. The appeal was
dismissed on this ground and therefore there was no necessity
to go into the question whether the suit was maintainable or
not. On a further appeal, the Supreme Court accepted the
contention of the plaintiff that the properties belonged to the
mother. However, the Supreme Court held that since she was
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one of the three heirs of her mother and since she had not
impleaded her two brothers to her suit, the suit was liable to be
dismissed. The Supreme Court further observed:
“It is true that under Order I, Rule 9 of the Code of
Civil Procedure no suit shall be defeated by reason
of the mis-joinder or non-joinder of the parties, but
there can be no doubt that if the parties who are not
joined are not only proper but also necessary
parties to it, the infirmity in the suit is bound to be
fatal. Even in such cases, the Court can under Order
1. Rule 10, sub-rule (2) direct the necessary parties
to be joined, but all this can and should be done at
the stage of trial and that too without prejudice to
the said parties' plea of limitation. Once it is held
that the appellant's two brothers are co heirs with
her in respect of the properties left intestate by their
mother, the present suit filed by the appellant
partakes of the character of a suit for partition and
in such a suit clearly the appellant alone would not
be entitled to claim any relief against the
respondents.”
This decision is thus an authority for the position that in
a suit for partition, all the sharers are necessary parties and
also for the position that the suit is liable to be dismissed for
nonjoinder of any one of the parties. In (T. Panchapakesan and
others v. Peria Thambi Naicker and others)also, a Division
Bench of this Court has taken a similar view by judgment
dated 18-7-1972. We are accordingly of the view that the
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finding of the learned Subordinate Judge on issue No. 10
holding that the suit is not bad for non-joinder of
Nagarathinam's heirs is unsound and liable to be set aside.
Accordingly, we hold that the suit is liable to be dismissed for
non-joinder of the heirs of Nagarathinam.”
13.1. The defendants in their written statement [Paragraph
Nos.4 and 14] has taken a categoric stand that the Suit is bad of non-
joinder of necessary parties, namely, legal heirs of the deceased married
daughters of Nadesa Vanniyar. Despite the same, the plaintiff has not
taken any steps to implead them. Hence, this Court is of the view that the
Suit is bad of non-joinder of necessary parties.
Non-joinder of necessary properties and Partial Partition
14. On March 15, 2005, the plaintiff issued Ex-A.1 – Suit
Notice to the defendants 1 to 3, seeking partition, wherein he has listed 7
items as leasehold properties to be partitioned. Serial Nos.1 to 4 thereof,
which are leasehold properties owned by the third defendant, now
constitute Suit Item No.2. Serial Nos.5 to 7 thereof, which are leasehold
properties owned by the said Radhabai, are not added to the Suit and no
explanation was assigned for the same. This Court deems fit to extract the
relevant portion of Ex-A.1 hereunder:
https://www.mhc.tn.gov.in/judis Page No.15 of 26
“gjpt[ jghy; xg;g[jy; ml;ila[ld; ehs; 15.03.2005
jpU. kh. ghhp/ gp.v!;.rp./ gp.vy;./ 1) ehfbuj;jpdk;
tHf;fwpOh; f/bg.enlr td;dpah;
ed;dpyk;. bjw;F bjU/
nrjdpg[uk;/
tpf;ughz;oak; mO;ry;/
Flthry; jhYf;fh.
2) tsh;kjp
f/bg. etbuj;jpdk;
bjw;F bjU/
nrjdpg[uk;/
3) b$abyl;Rkp mk;khs;
f/bg. bu';fbuj;jpdk;
mf;uQhuk; ma;ah;
nrjdpg[uk;/
vk;fl;rpf;fhuh; Flthry; jhYf;fh
tpf;ughz;oak; mO;ry; nrjdpg[uk; fpuhkj;jpy;
trpf;Fk; enlr td;dpah; Fkhuh; ,uh$huhkd;
vd;gth; bfhLj;j tpguj;jpd; nghpy; fPH;fz;l
mwptpg;g[ mDg;gg;gLfpwJ.
j';fspy; Kjy; egh; vk;fl;rpf;fhupd;
rnfhjuh;. 2k; egh; vk;fl;rpf;fhupd; rnfhjuh;
etbuj;jpdk; vd;gthpd; kidtp Mthh;fs;.
,we;Jnghd enlr td;dpaUf;F vk;fl;rpf;fhuiu
nrh;j;J 3 Mz; kfd;fSk;/ 4 kfs;fSk;
gpwe;jdh;. vk;fl;rpf;fhunu \j;j kfdhthh;.
jfg;gdhh; ,Uf;Fk;nghnj vk;fl;rpf;fhuh; jdJ
rnfhjhpfs; 4 ngh;fSf;Fk; jpUkzk; bra;J
itj;Js;shh;. nkny Twpa enlr td;dpah;
vd;gth; Fj;jif epy';fis rhFgo bra;J
te;Js;shh;. fPH;fz;Ls;s epy';fis jtpu ntW
epy';fs; vk;fl;rpf;fhuh; jfg;gdhh; enlr
https://www.mhc.tn.gov.in/judis Page No.16 of 26
td;dpaUf;F fpilahJ. vk;fl;rpf;fhUk; j';fspy;
1/ 2 egh;fSk; Tl;lhf Fj;jif epy';fis
rhFgo bra;J tUfpd;wdh;. jfg;gdhh; ,we;J 7
my;yJ 8 tUl';fs; fHpj;J j';fspy; 2k; eghpd;
fztUk; ,we;Jtpl;lhh;.
fPH;fz;Ls;s epy';fspy; 1 Kjy; 4 mapl;l
epy';fs; j';fspy; 3k; egUf;F brhe;jkhdjhFk;.
mitfs; jfg;gdhh; fhyk; Kjw;bfhz;L
Fj;jif rhFgoapy; ,Ue;J tUfpwJ. 5 Kjy; 7
mapl;l brhj;Jf;fs; brd;idapid nrh;e;j
uhjhgha; vd;w ,jpy; nruhj \d;whk; egh;
xUtUf;F brhe;jkhdjhFk;. mita[k; Fj;jif
epy';fshFk;. me;j epy';fSk; Tl;L Fj;jif
rhFgoapy;jhd; cs;sJ. nkw;go uhjhgha;
vd;gthplk; 7 g[y vz;fspy; fz;l brhj;jpid
enlrd; vd;gth; Fj;jif rhFgo bra;J mjpy;
4 mapl;l brhj;Jf;fis nkw;go enlrd;
fhyj;jpnyna epyr;brhe;jf;fhuUf;F
tpl;Lf;bfhLf;fg;gl;Ltpl;lJ. vdnt uhjhgha;
epy';fspy; 3 mapl;l brhj;Jf;fs; kl;Lnk
Fj;jif rhFgoapy; ,Ue;J tUfpwJ. uhjhgha;
vd;gtUf;F brhe;jkhd epy';fis rhFgo
bra;J tUtjw;F tptrhapfs; ml;il
tH';fg;gl;ljpy; vk;fl;rpf;fhuh; bgaUf;F
nkw;go ml;il tH';fg;gl;Ls;sJ. Fj;jif
epy';fs; bghUj;J jfg;gdhh; enlrd; vt;tpj
Vw;ghLk; bra;ahky; ,we;Jtpl;lhh;.
https://www.mhc.tn.gov.in/judis Page No.17 of 26
vk;fl;rpf;fhuh; ,dpa[k; Fj;jif epy';fis
Tl;lhf mDgtpf;f tpUk;gtpy;iy. j';fspd; 3k;
egh; 1/ 2 egh;fSld; VnjDk; Mtz';fs;
Vw;gLj;jpdhy; mJ vk;fl;rpf;fhuiu
fl;Lg;gLj;jhJ. Kjy; 4 mapl;l brhj;Jf;fs;
bghUj;J nkw;go 3k; egh; Mtzk;
Vw;gLj;jpdhYk; bry;yf;Toajy;y. tUtha;
ePjpkd;wk; tHpahfj;jhd; rhFgoahsh;
chpikapid ePf;f Koa[k;. vdnt j';fspy; 3k;
egh; vt;tpj xg;ge;jKk; 1/ 2 egh;fSld; bra;a
ntz;lhk; vd ,jd; \yk;
nfl;Lf;bfhs;sg;gLfpwPh;fs;.
,e;j mwptpg;g[ fz;l 10 jpd';fSf;Fs;
j';fspy; 1/ 2 egh;fs; fPH;fz;Ls;s
brhj;Jf;fspy; vk;fl;rpf;fhuUf;Fs;s 1/3 ghf
tPjj;jpid (Fj;jif brhj;J) gphpj;J
bfhLf;Fk;go nfl;Lf;bfhs;sg;gLfpwPh;fs;.
R\fkhd Kiwapy; vk;fl;rpf;fhuh; ghfj;jpid
jdpahf gphpj;J bfhLf;fhtpoy; chpa
ePjpkd;wj;jpy; tHf;F bjhlh;e;J ghpfhuk; njl
nehpLk; vd;gij mwpat[k;.
brhj;J tpguk;
Flthry; jhYf;fh rPjf;fk';fsk; tl;lk;
nkyg;gplhif fpuhkj;jpy; cs;s
https://www.mhc.tn.gov.in/judis Page No.18 of 26
1) g[y vz; 117/1 y; 0.10.5 Vh;!; eO;ir
2) g[y vz; 117/3 y; 0.25.5 Vh;!; eO;ir
3) g[y vz; 117/4 y; 0.13.5 Vh;!; eO;ir
4) g[y vz; 117/5 y; 0.31.5 Vh;!; eO;ir
Flthry; jhYf;fh nrjdpg[uk; fpuhkj;jpy;
msthfpa[s;s
5) g[y vz; 58/16 y; 0.20.0 Vh;!; eO;ir
6) g[y vz; 63/4 y; 0.16.0 Vh;!; eO;ir
7) g[y vz; 14//5 y; 0.02.0 Vh;!; eO;ir ”
15. Ex-A.1 is the foundation of the plaint. If some properties
are omitted there is no bar to add them in the plaint. But when some
properties are categorically listed in the Suit Notice for partition, their
omission in the plaint without any due reason is not acceptable. It is
settled law that in a Suit for partition, all the properties have to be
included in the Suit. As stated supra, in this case, the plaintiff has not
included the leasehold properties of Radhabai described as Serial Nos.5 to
7 in Ex-A.1. The plaintiff cannot omit and seek partition only in respect of
certain properties as per his discretion [See Alli Sekar’s Case (cited
supra)]. Hence, the Suit is bad for not just non-joinder of necessary
properties but partial partition as well.
16. P.W.1 in his evidence has deposed that Serial No.1
(Survey No.6/17) in Suit Item No.1 was purchased in his wife’s name
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from his father – Nadesa Vanniyar; that Serial No.2 (Survey No.7/16B)
thereof had been sold to one Veeramani by his father, but Sale Deed is yet
to be executed; that Serial No.3 (Survey No.23/12) had been sold by him
in favour of one Sidhar. However, the plaintiff did not file any document
in support of his evidence. The above evidence supports the defendants’
case of Oral Partition. If really, Serial No.1 to 3 in Suit Item No.1 had not
been allotted to the plaintiff, he would not have been able to sell the same
to others in the absence of the co-sharers.
17. Further, there is no documents evidence available on
record to show that the plaintiff is in possession and enjoyment of the Suit
Item No.2. The plaintiff filed Ex-A.11 to Ex-A.25. There is nothing
available on record to suggest that the said documents are related to Suit
Item No.2. The First Appellate Court in Paragraph No. 12 of its Judgment
after an elaborate discussion found that the plaintiff is not in possession
and enjoyment of the Suit Item No.2. Further, the original owner
Jayalakshmi / third defendant, in her Reply Notice to the plaintiff dated
March 22, 2005 (Ex-B.3 = Ex-B.36), has stated that except the Thopu of
18 Cents in R.Survey No.117/3, all the other properties contained in Suit
Item No.2 were initially cultivated by plaintiff’s father-Nadesa Vanniyar
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and later by the first defendant and the second defendant’s husband, after
Nadesa Vanniyar divided his properties and allotted Suit Item No.2 except
the said Thopu to them. Further stated that, vide Exs-B.33 & B.38 - Sale
Deeds dated November 16, 2004 and September 29, 2004, she sold Suit
Item No.2 except the said Thopu to defendants 1 and 2. Relevant extract
of Ex-B.3 = Ex-B.36 reads thus:
“2. That Natesan was the cultivating tenant of the
lands except the Thopu'of about 18 cents in R.S. No.
117/3, Even while Natesan was alive, it seems that he
divided his properties namely rights and possession of
lands amicably and caused his sons to cultivate the same
as per the said arrangement. The lands mentioned items 1
to 4 in your notice is one such lands.
3. That as per their arrangements, his sons
Nagarathinam and Navarathinam have been contributing
their physical labour in the cultivation of the said lands
even while Natesan was alive and paying rent. That they
continued even after the demise of Natesan.The said
Nagarathinam and Navarathinam were cultivating the
properties 1 to 4 and have been paying the rent to our
client. Your client Rajaraman has not cultivated items 1 to
4 and not paid rent. Hence the said Nagarathinam and
Navarathinam were the persons who succeeded to the
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tenancy rights as far as the items 1 to 4 (even assuming
that there was no division previous to death of Natesan)
and paying rent to our client.
4. Navarathinam died and his wife Valamarthi has
been contributing physical labour and cultivated the lands
jointly with Navarathinam and paying rent.
5. They wanted to purchase the lands which they
have been cultivating. Hence our client executed separate
sale deeds as wished by them, and transferred the
properties by sale deed for consideration on 16.11.2004
and .29.9.2004. The said Nagarathinam and Valarmathi
have become absolute owners of the properties as per
their respective sale deeds.”
18. Pursuant to Ex-B.33 and B.38 – Sale Deeds, revenue
records were mutated in the names of first defendant and second
defendant in respect of their respective portions. Thereafter, first
defendant sold an extent of 10 Cents in Survey No.117/1 and 5 Cents in
Survey No.117/4 to fourth defendant – Ravi vide Ex-B.32 - Sale Deed
dated May 31, 2005. Further, on the same day first defendant executed
Ex-B.30 – Sale Deed in respect of an extent of 6 2/3 Cents in Survey
No.117/4 in favour of fifth defendant - Sekar. Evidence available on
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record shows that revenue records were also mutated accordingly in the
names of the purchasers.
19. P.W.2 - Kaliyamoorthi in his evidence has deposed that
the sons of Nadesa Vanniyar were managing the properties separately.
P.W.3 also deposed about the purchase of portions of Suit Item No.2 by
defendants 4 and 5 from first defendant. Conjoint reading of the evidence
would lead this Court to strong inferences, which in turn would lead to
strong presumptions, which in turn, in view of Section 3 of the Indian
Evidence Act, 1872, leads to the conclusions that Oral Partition had been
effected, that Suit Item No.2 excluding the said Thopu was allotted to first
defendant and second defendant’s husband; that Serial Nos.1 to 3 in Suit
Item No.1 and some other properties not included in the Suit were allotted
to the plaintiff. 1st defendant and 2nd defendant's husband being exclusive
title holder, injunction cannot be granted against them. The Trial Court as
well as the First Appellate Court after considering the evidence available
on record arrived at a factual finding that Oral Partition took place
whereby Suit Item No.2 was allotted to the first defendant and second
defendant’s husband, excluding the said Thopu. This Court does not find
any reason to deviate from the concurrent findings. The Second Appeal
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does not have any question of law, much less, Substantial Question of
Law. Therefore, it is liable to be dismissed. There is no quarrel with the
rulings cited on either side.
CONCLUSION:
20. Resultantly, the Second Appeal is dismissed. Keeping in
mind the facts and circumstances of the case, there shall be no order as to
costs. Connected Civil Miscellaneous petition shall be closed.
20 / 01 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
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To
1.The Subordinate Court
Thiruvarur.
2.The District Munsif cum
Judicial Magistrate Court
Nannilam.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO. 636 OF 2017
20 / 01 / 2025
(2/2)
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