Madras High Court
C.Sampath vs R.Raghurama Reddiar (Died) on 11 March, 2025
Author: T.V. Thamilselvi
Bench: T.V. Thamilselvi
S.A.No817 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2025
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.817 of 2001
and
C.M.P.No.8339 of 2001
C.Sampath ...Appellant/Respondent/Plaintiff
Vs.
1.R.Raghurama Reddiar (died)
2.Sarathaammal
3.Dayalan ...Respondents/Appellants/Defendant
[R2 and R3 brought on record as the legal representatives of the deceased
R.Raghurama Reddiar, vide order of this Court dated 21.03.2018 made in
C.M.P.Nos.20384 to 20280 of 2017 in S.A.No.817 of 2001 by MDIJ]
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree dated 13.06.2000 made in
A.S.No.19 of 1996 on the file of the learned Subordinate Judge, Ranipet,
reversing the Judgment and Decree dated 22.01.1996 made in O.S.No.398
of 1995 on the file of the learned District Munsif -cum- Judicial
Magistrate No.I, Wallaja.
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S.A.No817 of 2001
For Appellant : Mrs.R.Meenal
For Respondents : Mr.R.Ramesh for R2 and R3
R1 - died
JUDGMENT
This Second Appeal arises against the Judgment and Decree
13.06.2000 made in A.S.No.19 of 1996 on the file of the learned
Subordinate Judge, Ranipet, reversing the Judgment and Decree dated
22.01.1996 made in O.S.No.398 of 1995 on the file of the learned District
Munsif -cum- Judicial Magistrate No.I, Wallaja.
2.The parties are described in the same array as in the Original Suit.
The facts in brief which are necessary for disposing of the above
Second Appeal are hereinbelow narrated:
PLAINTIFF'S CASE:
3.The appellant is the plaintiff. The suit was filed for declaration
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and for permanent injunction, restraining the defendant from interfering
with the plaintiff's peaceful possession and enjoyment of the suit property
as described in the Plaint schedule.
4.The plaintiff's father Chinniah Reddiar and the defendant's father
Raja Reddiar are brothers. They entered into an Oral Partition along with
other brothers 40 years ago. The front portion of the suit house along with
the backyard as mentioned in the Plaint schedule was allotted to the father
of the plaintiff along with other properties. In the said suit house, the
middle portion and the adjacent backyard was allotted to the share of the
defendant's father along with other properties. Ever since then they are in
possession and enjoyment of the properties as per the allotment and
thereby, the suit property is the absolute property of the plaintiff's father.
The plaintiff's father was residing in the said house during his lifetime.
After his demise, the plaintiff and his brothers divided the properties
among themselves. Accordingly, the suit property was allotted to the
share of the plaintiff and the plaintiff is enjoying the suit property. Due to
efflux of time, the old house in the suit property was in a dilapidated
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condition and he is enjoying the vacant site. Without any interruption
from their ancestors, the plaintiff is enjoying the properties. The
defendant who is residing adjacent to the suit property attempted to cause
interference. Therefore, pre suit notice was issued to the defendant and the
defendant sent his reply to the plaintiff. Hence, the plaintiff instituted the
suit.
WRITTEN STATEMENT OF THE DEFENDANT:
5.The defendant had filed a Written Statement inter alia contending
that he denied the oral partition claimed by the plaintiff said to be acted
upon between his father and the plaintiff's father along with other
properties 40 years ago. The defendant admitted the relationship between
the plaintiff and the defendant. He contended that his father Rajan
Reddiar was allotted the back portion of the house along with backyard.
After his demise, the defendant is residing in that house. The entire
backyard and the suit property as a vacant site which was not enjoyed by
the plaintiff as he claimed. At any point of time, no house was built up
there. The defendant alone enjoyed the backyard portion. There was a
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three feet lane to reach the Street on the Western side. He enjoyed the
backyard through the three feet lane without any interruption continuously
more than decades and thereby he has perfect title by adverse possession.
There was no adjacent land as described in the Plaint schedule. The house
as described in the suit schedule along with backyard is belonged to the
defendant and his father. Therefore, the plaintiff is not entitled to claim
any relief and prayed for dismissal of the suit as no merits.
TRIAL COURT:
6.The parties had gone to trial on the issues that were framed by the
Trial Court apart from examining two other witnesses as PW2 and PW3.
On the side of the plaintiff, the plaintiff had examined himself as P.W.1
and marked Ex.A1 and Ex.A2. On the side of the defendant, the defendant
had examined himself as D.W.1 and marked Ex.B1 to Ex.B9.
7.The learned District Munsif -cum- Judicial Magistrate No.I,
Wallaja, on analysing of the oral and documentary evidence decreed the
suit as prayed for. The learned Judge rendered a finding that there was a
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partition held in the family and the same was proved by the plaintiff by
examining PW2 and PW3 as witnesses. During the course of examination,
they had deposed that there was a partition held in which the plaintiff's
father was allotted with the front portion of the house along with the
backyard and the defendant's father was allotted with the middle portion of
the house along with the adjacent backyard and thereby, the suit property
was allotted to the share of the plaintiff's father. After his demise, the
plaintiff is enjoying the same. The defendant was allotted with the middle
portion of the house and his Door Number is assigned as 2/65, for that
alone, he produced Ex.B.1 to Ex.B.8 – House Tax receipts, which shows
that he is enjoying the thatched house. Further, there is no proof to
establish that he is uninterruptedly enjoying the suit property and mere
residing in the suit property is not converted any right or title and it
required specific separate evidence but, the same was not adduced by the
defendant. Moreover, the evidence of PW2 and PW3 established that the
plaintiff was residing in the house situate in the suit property and begotten
nine children and the suit house is in a dilapidated condition. Even then he
is enjoying the portion uninterruptedly. Considering the same, the Trial
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Court granted the relief in favour of the plaintiff.
APPELLATE COURT:
8.Aggrieved by the said Judgment and Decree, the defendant had
filed A.S.No.19 of 1996 on the file of the learned Subordinate Judge,
Ranipet and the First Appellate Court allowed the appeal setting aside the
findings of the Trial Court. The First Appellate Judge independently
analysed the record and held that there was a division of the property in
which the back portion of the house along with the backyard with Door
No.2/65 allotted to the defendant and the front portion was not allotted to
anybody but the same was under the enjoyment of the defendants. To
disprove the same, the plaintiff has not produced any material evidence to
show that he was in possession and enjoyment of the suit property after the
demise of his father. Moreover, the Partition was acted upon long ago but,
the plaintiff was not aware of the same since he is only 2 years old.
Further, the plaintiff has not produced any document to show that he is in
possession and enjoyment of the property and no document was produced
that there was a house in that property and mere oral evidence is not
sufficient. Therefore, the First Appellate Judge held that the plaintiff has
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no right or title over the suit property and the Appeal Suit was allowed by
setting aside the findings of the Trial Court. Aggrieved over the same, the
plaintiff preferred this Second Appeal.
9.At the time of admission, this Court had framed the following
Substantial Questions of Law:
“(1) Whether in law is not the Judgment of the Lower
Appellate Court erroneous as it has not even framed
relevant point for determination as required under Order
41 Rule 31 of the Code of Civil Procedure?
(2)Whether in law has not the Lower Appellate Court
erred in overlooking that the defendant's documents
related to the middle portion that is Door No.2/35 in which
case the plaintiff should have been allotted the front
portion?”
SUBMISSIONS:
10.Ms.R.Meenal, learned counsel appearing for the appellant would
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argue that the First Appellate Court failed to appreciate the evidence of
PW2 and PW3 that there was a Partition in which the suit property was
allotted to the plaintiff's share and erroneously dismissed the suit, when
there is no evidence to substantiate the defence of the defendant. Further,
she would argue that the defendant has been residing near the suit property
in Door No.2/65 and that the House Tax receipts are also pertaining to the
said Door Number. Further, the defendant has not produced any material
evidence to establish that he possessed and enjoyed the suit property.
Also, the defendant has admitted that there was a partition. But, the First
Appellate Court failed to take note of the fact that he has not produced
Ration Card, Voters List, and dismissed the claim of the plaintiff as
erroneous and it is liable to the set aside.
11.Per contra, Mr.R.Ramesh, learned counsel appearing for the
respondents would contend that the defendant denied the Oral partition
claimed by the plaintiff said to be acted upon between his father and the
plaintiff's father along with other properties 40 years ago. He contended
that his father Rajan Reddiar was allotted the back portion of the house
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along with backyard. After his demise, the defendant is enjoying the
property. The suit property as a vacant site, was not enjoyed by the
plaintiff. He would submit that there was a three feet lane to reach the
Street on the Western side and the defendant enjoyed the backyard through
the three feet lane without any interruption continuously more than
decades and thereby he has perfect title by adverse possession. The house
as described in the suit schedule along with backyard is belonged to the
defendant and his father. Therefore, the plaintiff is not entitled to claim
any relief.
DISCUSSION:
12.Heard the learned counsels appearing on either side and perused
the records.
13.Admittedly, the plaintiff's father and the defendant's father are
brothers. According to the plaintiff, there was an oral partition held 40
years ago between the brothers in which the front portion of the house
with backyard in the suit property which is the front portion of the house
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was allotted to the share of the plaintiff and the middle portion along with
the backyard was allotted to the defendant. The defendant has also
admitted that he was allotted with middle portion with backyard. But, he
claimed that the suit property was allotted under his enjoyment and it was
not allotted to the plaintiff's share at any point of time. Further, the
defendant has admitted that the middle portion was allotted to his father
that impliedly shows that the defendant admitted the Partition held
between his father and the plaintiff's father long ago. Even in the Written
Statement, the defendant has not denied about the division of the
properties between his father and others. He has impliedly claimed that
his father was allotted with middle portion and he enjoyed the suit
property along with that. But, as per the evidence of PW2 and PW3, he
has stated that their elder brother is Munusamy and the plaintiff's father
and the defendant's father along with three others, totalling they are six
brothers. They are all divided the properties and there was three house
sites. Each of the sites was allotted to the two brothers. Accordingly, the
plaintiff's father was allotted with Eastern portion and in the same house
site, the back portion was allotted to the defendant's father.
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14.Further, PW2 in his evidence deposed that all the six persons
divided the three house sites and the portion allotted to the plaintiff's
father. The house was allotted to the plaintiff's father with backyard and
the middle portion was allotted to the defendant's father. Therefore,
through the Oral evidence, the plaintiff is able to establish that the suit
property was originally allotted to the father of the plaintiff, more
particularly, on the Eastern side of the house site was allotted to the
plaintiff's father and as on date, it is a vacant site and also adjacent to the
house of the defendant's portion which was allotted in the said partition.
Moreover, the evidence of DW1 reveals that the said site is on the
Northern side of Bhajanai Kovil Street, East-West 14 feet, North-South 20
feet and the suit vacant site. It is a vacant site on the Northern side of the
same and the thatched house bearing Door No.2/65 is situated. Therefore,
the evidence of DW1 reveals that the suit property was a vacant site and
the defedant is residing in Door No.2/65 and the document relied by him
as Ex.B.1 to Ex.B.8 is pertaining to the said house. Therefore, the
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evidence of PW1 as well as the admissions made by the defendant proved
that the suit property was allotted to the plaintiff's father. After his
demise, the plaintiff is enjoying the suit property. The defendant is
enjoying his house portion bearing Door No.2/65 and he has not produced
any document to show that he is enjoying the suit property as a vacant site
along with house property. When the defendant admitted that the middle
portion was allotted to his father, he ought to have mentioned that which
portion was allotted to the plaintiff's father, but he failed to mention the
same. The defendant admitted the division of the property. The plaintiff
by examining PW2 and PW3 categorically established that the suit
property was allotted to the plaintiff's father, indeed, PW2 is one of their
brothers and he was allotted another portion of the house site. It is
evidenced that there was a partition held in the family long back and the
suit property was allotted to the plaintiff's father. The Trial Court has
rightly appreciated the Oral and documentary evidence and decreed the
suit in favour of the plaintiff. But, the First Appellate Court has not
properly appreciated the evidence on record and erroneously dismissed the
suit.
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15.As rightly pointed out by the learned counsel appearing for the
appellant, the First Appellate Court has not framed proper issues while
adjudicating the Appeal Suit. On the other hand, the Trial Court has
framed eight issues and answered to all the issues. Therefore, on the
ground of non framing of the proper issues, the Judgment and Decree of
the First Appellate Judge is liable to be set aside. The Substantial
Question of Law (1) is answered accordingly.
16.Further, the defendant admitted that the middle portion was
allotted to him, it implies that the partition was held in the family.
Therefore, the case of the plaintiff is also acceptable one. Without
appreciating the said proposition, the First Appellate Judge allowed the
Appeal Suit and held that the appellant has not produced any FMB to
prove his right or title over the suit property, is erroneous one. PW2 and
PW3 deposed that the suit property was allotted to the plaintiff and
thereby, the First Appellate Judge has erroneously determined the issues.
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The Trial Court has rightly appreciated the evidence on record and granted
decree in favour of the plaintiff. The Substantial Question of Law (2) is
answered accordingly.
In the result, this Second Appeal is allowed. The Judgment and
Decree of the First Appellate Court is set aside and the Judgment and
decree of the Trial Court is confirmed. However, there shall be no order
as to costs. Consequently, connected Miscellaneous Petition is closed.
11.03.2025
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
mps
To
1.The Subordinate Judge,
Ranipet.
2.The District Munsif -cum- Judicial Magistrate No.I,
Wallajah.
3.The Section Officer,
VR Section,
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S.A.No817 of 2001
Madras High Court.
T.V.THAMAILSELVI, J.
mps
and
11.03.2025
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