Madras High Court
A.Palanisamy vs Venkatachalam on 30 January, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No. 593 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.01.2025
CORAM
THE HONOURABLE MRS JUSTICE T.V.THAMILSELVI
SA NO. 593 of 2024
A.Palanisamy
... Appellant(s)
Vs
1. Venkatachalam
2. Kaliamma
3. Kokilambal
4. Duraisamy
5. Subbulakshmi
6. Shanmuga Sundaram
7. Bala Govindasamy
... Respondents
Prayer:- Second Appeal has been filed under Section 100 C.P.C., against
the judgment and decree dated 24.11.2023 made in A.S.No. 01 of 2023 on
the file of the Sub-Court, Palladam confirming the judgment and decree
dated 25.11.2022 made in O.S.No. 251 of 2009 on the file of the District
Munsif Court, Palladam.
For Appellant : Mr.K.Govi Ganesan
For Respondents : Mr. M.Guruprasad for R1 to R7
1/7
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S.A. No. 593 of 2024
JUDGEMENT
Challenging the concurrent findings of the courts below rendered in
A.S.No.01 of 2023 on the file of Sub-Court, Palladam arising out of trial
court findings in O.S.No.251 of 2009 on the file of District Munsif Court,
Palladam, this Second Appeal was preferred by the appellant/plaintiff.
2.For the sake of convenience, the parties are denoted as per the
ranking in the suit.
3. Before the trial court, the plaintiff filed a suit for the relief of
declaration and consequential permanent injunction restraining the
defendants not to cause interference in respect of suit properties in Survey
Nos. 375/1B and 374/1A. According to plaintiff, on 13.04.1948 through a
sale deed one Avinashiappa gounder and Ramasamy Gounder jointly
purchased the properties and thereafter, on 03.10.1979 they partitioned the
schedule mentioned properties, thereby the properties were divided among
them. The 'A' schedule property was allotted to Avinashiappa gounder and
'B' schedule property was allotted to Ramasamy Gounder. The plaintiff is
one of son of Avinashiappa gounder. The 1st defendant is the second son of
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Ramasamy gounder. As per the partition, 'A' schedule property was allotted
to plaintiff's father, which comes around 5.37 acre and for 'B' schedule
property was allotted to father of 1st defendant, which comes around 5.37
acre during partition with other common rights including Well.
Subsequently, after sub-division, UDR patta was issued and thereafter only
the plaintiff came to know that more extent was allotted to Ramasamy
gounder, father of 1st defendant. Hence, he raised objections. But, it was not
accepted by the 1st defendant. Therefore, he came forward with the present
suit.
4. The contesting defendants submitted that after the partition held on
03.10.1979, sub-divisions were effected in the year 1994 and in the
presence of both parties, properties were measured. Accordingly, UDR
Pattas were issued for Avinashiappa and Ramasamy gounder in the year of
1984 for Survey Nos. 374/1 and 375/1, thereby an extent of 4.83 acres and
an extent of 5.05 acres was allotted respectively. Thereafter, the properties
were enjoyed by both parties respectively. The plaintiff also sold portion of
property to third party based on said sub-division. Nearly about 20 years
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later, after the sub-division, he filed the present suit as such is not
maintainable and prayed to dismiss the suit.
5. The Trial Court framed issues. Considering the facts as well as
evidence on record, the trial court found that as per patta passbook, the
property in Survey No.374/1A was subdivided, which belongs to plaintiff's
branch land and the property in Survey No.375/1B belongs to defendants
branch was also subdivided, but all these facts have not been brought before
this court by the plaintiff with correct material facts. Therefore, he is not
entitled for the relief as prayed for. He approached the court without
disclosing the said facts. Accordingly, the suit was dismissed. Against
which, he preferred the appeal suit in A.S.No.01 of 2023 on the file of Sub-
Court, Palladam. The first appellate judge independently analysed the facts
and evidence on record and framed separate issues and finally held that after
the partition held in the year of 1979, the plaintiff came to know that more
extent was allotted to the defendants during UDR patta of the year 1984, he
ought to have raised objections much earlier. But, as on date, he has not
produced any document to show that he raised objections before the RDO
while preferring appeal suit. Having came to know about the UDR patta in
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the year 1984, the plaintiff sold portion of property and thereafter nearly
about 20 years later, he approached the court as such is not maintainable.
Accordingly, the appeal suit was dismissed by relying the following
authorities :-
i. 2003 Supreme (SC) 131
ii. 2019 Supreme (SC) 123
iii. 2022 Live Law (SC) 241
iv. 2022 (1) Civil Court cases 77
v. 2021 (4) Civil Court cases 202
vi. 2022 O Supreme (SC) 718
vii. 2022 (3) MLJ 58 O Supreme (SC) 718
viii. 2018 (6) CTC 384
ix. 2022 (5) CTC 932
Challenging the concurrent findings of the courts below, now, the plaintiff
approached this Court.
6. On perusal of facts, it would clearly reveals that one Ramasamy
gounder and Avinashiappa gounder jointly purchased the property and
thereafter, in the year 1979, partition was effected, in which 'A' schedule
property was allotted to Avinashiappa gounder and 'B' schedule was allotted
to Ramasamy gounder. The plaintiff, who is the elder son of Avinashiappa
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gounder now disputing the share allotted to Ramasamy gounder stating that
more extent was given, which came to his knowledge after UDR patta was
issued in the year of 1984. Eventually, the suit was filed in the year 2009
nearly about 20 years later, the courts below rightly observed that after
subdivision, if any objection on the part of the plaintiff, he would have
raised the same before the revenue authority within a period of three years
after the said subdivision. But, he has not raised any such objections, on the
other hand, he sold portion of property after sub-division, which itself
shows that he is also inclined to accept the subdivision. Therefore, he is
estopped from his conduct and the same was rightly observed by the courts
below, needs no interference of this court. So, the plaintiff had not proved
his claim and it was rightly observed by the courts below. Hence, I do not
find any merit in this Second Appeal as there is no substantial question of
law involved for consideration. Accordingly, this Second Appeal is
dismissed. No costs.
30.01.2025
rpp
To
Principal Subordinate Judge, Tiruppur.
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T.V.THAMILSELVI, J.
rpp
30.01.2025
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