Madras High Court
A.Natesan vs A.Chinnappan on 10 October, 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on : 12.09.2025 Judgment pronounced on : 10.10.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
A.S.No.141 of 2025
& CMP.Nos.13809 & 2853 of 2025
A.Natesan ..Appellant
Vs.
A.Chinnappan ..Respondent
Prayer: Appeal Suit filed under Section 96 of CPC, to set aside the judgment
and decree dated 11.12.2024 in O.S.No.323 of 2021 on the file of the learned
Additional District Judge, Fast Track Court, Mettur, by allowing the appeal
suit.
For Appellant : Mr.N.Manoharan
For Respondent : Mr.M.R.Jothimanian
JUDGMENT
The unsuccessful plaintiff in O.S.No.721 of 2022, before the Additional
District Judge, Fast Track Court, Mettur, is the appellant. The plaintiff had
sought for the relief of partition of his alleged half share in the suit properties,
by metes and bounds.
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2.The facts, set out in the plaint in brief, are as follows:
The plaintiff and the defendant are brothers. They had entered into a
partition deed on 30.04.1984 amongst themselves and their father and two other
brothers. In the said partition deed, one item of properties, namely schedule 'C'
thereto was allotted to the share of the plaintiff and similarly, schedule 'E' was
allotted to the share of the defendant. The properties, which were forming part
of the said 'C' and 'E' schedules were situate in Veerakkal village. The
properties in Thoramangalam village, being the suit properties, stood jointly
allotted to both the plaintiff and the defendant, claiming that the plaintiff and
the defendant have been in joint cultivation of the said lands in Thoramangalam
village and that when the plaintiff demanded for partition, the defendant
attempted to alienate his half share and despite mediation talks initiated, the
defendant did not come forward for giving the plaintiff his due half share and
under such circumstances, the plaintiff approached the Court seeking partition.
3.The facts, set out in the written statement in brief, are as follows:
The partition deed dated 30.04.1984 was complete and there was no
property set apart for common enjoyment as alleged. The suit is bad for non-
joinder of other parties to the partition deed and also non-inclusion of the
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properties that were purchased in the name of the plaintiff. The partition deed
dated 30.04.1984 has been given effect to by metes and bounds and the plaintiff
and the defendant are in separate possession and enjoyment of their respective
shares. The plaintiff, in fact, took steps for subdivision and the lands have also
been sub-divided and separate pattas have been issued and pursuant to the
same, both the plaintiff and the defendant have been paying tax to the
Government in their individual names. The plaintiff himself availed a loan from
Thoramangalam Cooperative Society and State Bank of India, Jalakandapuram
Branch, evidencing separate possession and enjoyment of the plaintiff's share in
the suit properties. The defendant has invested huge monies in developing the
lands allotted to his share and he has developed coconut groves. As the
defendant did not have any male issues, the plaintiff started attempting to
pressurize the defendant to sell the properties to him and since the defendant
refused, the plaintiff has been having a grudge and thereby started interfering
with the defendant's peaceful possession and enjoyment, which necessitated the
defendant to file O.S.No.181 of 2021 to protect his possession. The defendant
therefore sought for dismissal of the suit.
4.Issues framed by the trial Court:
The Trial Court, considering the pleadings available, framed the
following issues:
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i. Whether suit property along has been kept in common
for enjoyment of the plaintiff and defendant?
ii. Whether plaintiff is entitled to ½ share in the suit
property?
iii. Whether the entire property belong to the plaintiff and
defendant partitioned including the suit properties among the
plaintiff and defendant?
iv. Whether the suit is hit by partial partition?
v. Whether the suit is bad for non-joinder of necessary
parties?
vi. Whether the suit property fell to the share of the
defendant in the oral partition?
vii. To what other reliefs?
5.Witnesses examined and exhibits marked before the Trial Court:
During trial, on the side of the plaintiff, the plaintiff examined himself as
P.W.1 and marked Exs.A1 to A5. On the side of the defendant, he examined
himself as D.W.1 and marked Exs.B1 to B5. One Raja (Surveyor) was
examined as D.W.2 and through him, Exs.X1 to X3 were marked.
6.The trial Court, upheld the contentions of the defendant and dismissed
the suit.
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7.I have heard Mr.N.Manoharan, learned counsel for the appellant and
Mr.M.R.Jothimanian, learned counsel for the respondent. I have also gone
through the oral and documentary evidence adduced by the parties before the
Trial Court and also gone through the judgment and decree passed by the Trial
Court.
8.Arguments of the learned counsel for the appellant:
Mr.N.Manoharan, learned counsel for the appellant would state that the
relationship between the parties is not in dispute. The factum of execution of
the registered partition deed in Ex.A1 = Ex.B3 is also admitted. Under the said
partition deed, the plaintiff was allotted 'C' schedule properties and the
defendant was allotted 'E' schedule properties. The father of the plaintiff and
the defendant and their brothers were allotted separate properties which were
set out under different schedules to the said partition deed. Insofar as the
properties that are situate at Veerakkal village, there is no dispute. However, it
is only in respect of the properties that have been set out in schedule 'C', situate
at Thoramangalam village, the plaintiff claims that these lands were jointly
allotted to the plaintiff and the defendant.
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9.The learned counsel for the appellant would take me through the said
partition deed and point out to the schedules under which the plaintiff and the
defendant were allotted their respective shares and invite my attention to the
undivided share that has been allotted to both the plaintiff and the defendant.
He would contend that there was no division by metes and bounds and
therefore, the plaintiff was well within his right to seek for partition of the said
lands which were jointly allotted to the plaintiff and the defendant, without
demarcation or setting out boundaries to their respective portions. He would
also refer to the FMB map which has been exhibited as Ex.X3 and contend that
there is a common Well which is situate in the lands that have been cultivated
by the defendant from which the plaintiff is entitled to draw water to his lands
and similarly, there is also a residential building, which is common to both the
plaintiff and the defendant, which is falling within the lands that are being
cultivated by the plaintiff. He would therefore state that unless there is a regular
partition deed between the parties, both the plaintiff and the defendant would
not be in a position to conveniently enjoy the lands allotted to them under
schedule 'C' to Ex.A1= Ex.B3, partition deed.
10.The learned counsel for the appellant would also invite my attention
to the suggestion put to the appellant who has examined himself as P.W.1 by
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the learned counsel for the defendant that in respect of the properties jointly
allotted to the plaintiff and the defendant, they have effected an oral partition
and the same has also been acted upon, by obtaining separate patta and
subdivision. The contention of the learned counsel for the appellant in this
regard is that the suggestion put to the plaintiff virtually effaces the defence
taken in the written statement where there was no such plea of oral partition,
but, it was only contended that the properties had been divided by metes and
bounds even under the partition deed, Ex.A1=Ex.B3. He would also refer to the
evidence of D.W.1 where D.W.1 has admitted that in respect of suit properties,
there is no document to evidence which portion was allotted to the plaintiff and
which portion was allotted to the defendant and also to the admission of D.W.1
that excepting the suit properties, in respect of all other properties, boundaries
have been mentioned, however, the said suggestion that there was no
boundaries indicated in respect of suit properties has been denied by D.W.1.
11.It is therefore contended by the learned counsel for the appellant that
the trial Court has clearly fell in error in not appreciating the oral evidence and
vital admissions of the defendant himself, regarding there being no formal
partition in respect of the suit properties. He would also contend that mere
enjoyment of separate and independent portions for the sake of convenience
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would not amount to actual devision of metes and bounds. In support of his
contention, the learned counsel for the appellant would rely on the following
decisions:
1.Badri Narayan Singh Vs. Kamdeo Prasad Singh,
reported in AIR 1962 SC 338.
2.Sheodan Singh Vs. Daryao Kunwar, reported in AIR
1966 SC 1332.
3.Lonankutty Vs. Thomman and another, reported in 1976
3 SCC 528.
4.Renganayaki and another Vs. K.R.Renganatha Mudaliar,
reported in 2001 (1) CTC 222.
12.Arguments of the learned counsel for the respondent:
Per contra, Mr.M.R.Jothimanian, learned counsel for the respondent
would contend that though the plaintiff claims that S.F.No.28 at
Thoramangalam village was jointly allotted to the plaintiff and the defendant,
the plaintiff himself approached the revenue authorities for sub-dividing the
lands and only at the request of the plaintiff, the lands have also been sub-
divided and patta has also been issued in respect of the sub-divided survey
numbers. He would further contend that based on the said subdivision, the
plaintiff has applied for electricity service connection which is evidenced by
Ex.A2. He would also rely on the exhibits marked through the Surveyor/D.W.2,
namely Ex.X1 to X3 which clearly evidenced the facturm of subdivision,
indicating separate enjoyment of the properties originally comprised in
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S.F.No.28 at Thoramangalam village. He would also refer to the schedule 'C'
whereunder the properties in Thoramangalam village were allotted to the
plaintiff and the defendant and would contend that only because of the common
Well and the residential house, the boundaries have not been mentioned unlike
the other properties. However, insofar as the lands, there has been a clear
demarcation and nothing was reserved for joint enjoyment. He would therefore
state that there is no error committed by the trial Court in dismissing the suit for
partition, warranting interference in this appeal.
13.I have carefully considered the submissions advanced by the learned
counsel on either side.
14.In fact, a suit filed by the defendant in O.S.No.181 of 2021 for
permanent injunction was renumbered as O.S.No.721 of 2022 and was jointly
disposed of, by a common judgment and the trial Court decreed the suit for
permanent injunction in O.S.No.721 of 2022, filed by the defendant.
Admittedly, there is no appeal as against the decree in O.S.No.721 of 2022.
15.Point for consideration:
On consideration of the pleadings, oral and documentary evidence, as
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well as the submissions made by the learned counsel for the parties, the
following point is formulated for consideration in this first appeal.
(i) Whether the suit properties continued to be in common
enjoyment of the plaintiff and the defendant even after Ex.A1 =
Ex.B3 partition deed dated 30.04.1984?
16.The moot question that arises for consideration in this appeal suit is as
to whether the lands in S.F.No.28 at Thoramangalam village have already been
divided by metes and bounds or whether they continued to be in common
enjoyment of the plaintiff and defendant, thereby entitling the plaintiff to the
relief of partition.
17.In order to address this issue and give an answer, it is necessary to
extract the schedules 'C' and 'E' of the partition deed.
Schedule 'C'
“.....rg;/hp/o/ njhuk';fyk; fpuhkk; hp/r/28/1g[/V
0/34f;F jP/U:/0/77 hp/r/28-2 g[/V/9/19f;F jPU:/20/68 Mf
bkhj;jk; 9/53f;F jP/U:/21/45 ,jpy; g";rhaj;jhu;fs;
gphptpid bra;J mj;J fhl;oa[s;sgo bghJtpy;
ghjp V 4/76 1-2 f;F jP/U:/10/73 ,jw;F br!;
U:/4/83 Mf U:/15/56 ,jd; 25 kl';F kjpg;g[
U:/389/00 ic& bek;ghpypUf;Fk; ,uz;L fpzWfspYk;
Mf U:/3462/75 ,itfspd; cj;jpthhp tha;f;fhy;
Jiy Vw;wk; tug;g[fs; ,itfspy; bghJtpy; ghjp
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ghj;aKk; ,itfspd; kjpg;g[ U:/4000/00 ic& xU
fpzw;wpy; cs;s SC.No.1204y; ,izf;fg;gl;Ls;s 5
HP kpd;rhu nkhl;lhh; gk;g[ brl; 1Yk; ,jd; rfy
jsthl rhkhd;fspYk; bghJtpy; ngh; ghjp
ghj;aKk; ,jd; kjpg;g[ U:/2000/00 ic& hp/r/28-2
ek;ghpy; ic& bek;gh; epy';fSf;F (bj) (t) (fp)
(nk) ,jd; kj;jpapy; fpHnkyo 20 bjd;tlyo 30
,e;jst[s;s 600 rJuo epyj;jpy; fl;oa[s;s k';fS:h;
gpy;iy tPL 1Yk; ic& tPl;oy; ,izj;Js;s
SC.No.1387Yk; ,jd; rfy jsthl rhkhd;fspYk;
bghJtpy; ngh;ghjp ghj;aKk; ,jd; fjt[ vz;/6/45y;
xU gFjp ,jd; kjpg;g[ U:/6700/00 ic& epy';fSf;F
khK:y; tHf;fg;go nghf tut[s;s khK:y; tHp eil
ghj;aKk; nrh;;e;Jk; ,jw;Fr; rk;ge;jk; Mf/////
Schedule 'E'
/////rg;/hp/o/ njhuk';fyk; fpuhkk; hp/r/28/1g[/V
0/34f;F jP/U:/0/77 hp/r/28-2 g[/V/9/19f;F jPU:/20/68 Mf
bkhj;jk; 9/53f;F jP/U:/21/45 ,jpy; g";rhaj;jhu;fs;
gphptpid bra;J mj;J fhl;oa[s;sgo bghJtpy;
ghjp V 4/76 1-2 f;F jP/U:/10/73 ,jw;F br!;
U:/4/83 Mf U:/15/56 ,jd; 25 kl';F kjpg;g[
U:/389/00 ic& bek;ghpypUf;Fk; ,uz;L fpzWfspYk;
Mf U:/3462/75 ,itfspd; cj;jpthhp tha;f;fhy;
Jiy Vw;wk; tug;g[fs; ,itfspy; bghJtpy; ghjp
ghj;aKk; ,itfspd; kjpg;g[ U:/4000/00 ic& xU
fpzw;wpy; cs;s SC.No.1204y; ,izf;fg;gl;Ls;s 5
HP kpd;rhu nkhl;lhh; gk;g[ brl; 1Yk; ,jd; rfy
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jsthl rhkhd;fspYk; bghJtpy; ngh; ghjp
ghj;aKk;/////”
18.Thus, it can been seen from the above extracted portion of the
partition deed that SF.No.28/1 measures 34 cents and SF.No.28/2 measures
9.19 acres. Though four boundaries are not mentioned, the schedule clearly
indicates that the Panchayatdars have partitioned the property and allotted one
half to each of the parties. Though much reliance is placed on the averment that
the division is half in common to each of the plaintiff and the defendant, I am
unable to countenance the argument of the learned counsel for the appellant for
the simple reason that the schedule itself indicates that the Panchayatdars have
demarcated the portions. If really the said lands were to be enjoyed in common,
then there would have been no necessity for inclusion of the statement that the
division is in terms of the Panchayatdars' decision.
19.The conduct of the parties, subsequent to the partition deed, also
assumes significance, in order to find out whether there was an acrual division
of the suit properties, by metes and bounds. It is seen from Ex.A2 that the
plaintiff has applied for electricity service connection to the Tamil Nadu
Electricity Board and a revised test report was given by the Electricity Board,
which has also been signed by the appellant himself. The said document is
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dated 23.01.1991. It is seen from the said exhibit that the plaintiff himself has
relied on the subdivision and has sought for a connection in SF.No.28/2E. If
really the lands were in common enjoyment, then the plaintiff would have to
have made an application in the joint names of the plaintiff and the defendant
or at least the Board would have insisted upon a No Objection Certificate from
the other co-owner, namely, the defendant. Admittedly, this was never done.
Similarly, Ex.B2 is the computerized patta bearing No.707 issued in the name
of the defendant and the same also evidences that S.F.No.28/1 as well as
S.F.No.28/2 has been subdivided and S.F.No.28/1B and S.F.No.28/2D have
been under the possession of the defendant. Exhibits marked as Ex.X1 to Ex.X3
also confirms the subdivision of S.F.No.28/1 and S.F.No.28/2. This only further
probablizes the case of the defendant that the division was effected even at the
time of Ex.A1=Ex.B3 partition deed as suggested and ordered by the
Panchayatdars.
20.Though it is faintly contended by the appellant that the defendant has
not been able to establish that it was only the appellant who sought for
subdivision based on the separate enjoyment, in view of Ex.A2 the application
for electricity service connection which has been admittedly made by the
appellant, I am unable to countenance the arguments that the defendant has
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failed to establish that the subdivision was only at the instance of the plaintiff.
Even assuming for a moment that it was only the defendant who sought for
subdivision and issuance of patta, even then the said subdivision has been
accepted and acted upon by the appellant himself, as demonstrated by his
conduct in Ex.A2.
21.Even Ex.A5 series also do not support the plaintiff's cause that there
has been no division as the electricity consumption card pertains to
S.F.No.28/2B which indicates that there has been a division. Even Ex.A4, tax
receipts and patta No.190 indicate subdivision of both S.F.No.28/1 as well as
S.F.No.28/2. Even assuming for the sake of argument, the plaintiff was not
even aware of the subdivision, then there is absolutely no justification for the
acts of the plaintiff in applying for electricity service connection in respect of
the sub-divided survey numbers and also payment of taxes which were made
only in respect of the sub-divided survey numbers.
22.Even in respect of the admissions of defendant as D.W.1 with regard
to the right of the plaintiff to draw water from the common Well which is
situate within the defendant's portion, this, by no means, would imply that there
was no partition in the first place at all. At best, the plaintiff can only seek for
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his right to draw water from the common well and to the contrary, he cannot
contend that the entire lands are still in common enjoyment and that therefore,
he is entitled to partition and a half share. The evidence of Surveyor, D.W.2
also evidences that there was a subdivision of S.F.No.28/1 and S.F.No.28/2. He
has stated that the subdivision was effected way back in the year 1987 itself. In
fact, in cross-examination, excepting for one question put to D.W.2 that
subdivided S.F.No.28/2B pertains to Well and S.F.No.28/2E pertains to house.
There is no further question put to D.W.2. From Exs.X1 to X3, it is clear that in
patta No.190 in S.F.No.28/1A and S.F.No.28/2F have been mutated in the name
of the plaintiff himself and S.F.No.28/1B and S.F.No.28/2D have been mutated
in the name of the defendant and separate pattas have been issued.
23.Even insofar as the suggestion put by the learned counsel for the
defendant to P.W.1 with regard to oral division as contended by the learned
counsel for the appellant, the suggestion is to be viewed only in the light of the
averments in the partition deed Ex.A1=Ex.B3, where there is a clear mention
that the division is in terms of the Panchayatdars' directions and this also
justifies the fact that there are no boundaries mentioned in respect of the suit
property, whereas in respect of other properties, four boundaries have been
mentioned. The evidence of D.W.1 also clearly suggests that though there is no
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separate document individually allotting the portions to the plaintiff and the
defendant, he has stated that even at the time of partition, it was indicated by
the Panchayatdars as to which portion was allotted to the plaintiff and which
portion was allotted to the defendant. Also, merely because D.W.1 admitted
that there was a passage set apart for ingress and egress and that the same was
not mentioned in the partition deed also does not lend support to the plaintiff's
case that there was no partition. Merely because, the parties had agreed upon
for providing a common pathway for convenient enjoyment of their respective
portions and the same did not find a mention in the partition deed, would not
imply that there was no partition at all in the first place.
24.As already discussed herein above, the fact that the schedule 'C' and
schedule 'E' pertaining to S.F.No.28 in Thoramangalam village there was a
partition in terms of division made by the Panchayatdars, identifying the
boundaries and the subsequent conduct of the parties in approaching the
revenue authorities for subdivision and separate patta and admittedly, the
parties being in separate possession and enjoyment, which has also come out in
oral evidence, cumulatively go to show that the parties had indeed effected a
division by metes and bounds even in respect of lands at Thoramangalam
village, namely the suit properties.
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25.The Trial Court has rightly assessed the oral and documentary
evidence and come to the conclusion that the suit properties have already been
partitioned and nothing remained for further division. I do not find that the trial
Court has misread or misconstrued the evidence on record and the findings
arrived at by the trial Court are based on the pleadings and evidence and it does
not require interference in appeal. In view of the above, the point formulated
for consideration is answered against the appellant and in favour of the
respondent.
26.In fine, the Appeal Suit is dismissed. Considering the relationship
between the parties, there shall be no order as to costs. Connected Civil
Miscellaneous Petitions are closed.
10.10.2025
Neutral Citation Case : Yes / No
Speaking / Non-speaking order
Index : Yes/No
ata
To
The Additional District Judge/Fast Track Court, Mettur.
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P.B.BALAJI.J,
ata
Pre-delivery judgment made in
& CMP.Nos.13809 & 2853 of 2025
10.10.2025
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