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High Court of Judicature at Madras
The Honourable Mr. Justice K.P. Sivasubramaniam
Lakshmiammal and another
Versus
C.P. Nanjappan and others
S.A. No. 1270 of 1987
Decided on: 09-02-2000
Property Dispute - Partition - O.P.No.92 of 1952 - Sections 11 and Order 2, Rule 2 C.P.C. - Adverse Possession - Oral Partition - Mutation of Municipal and Revenue records - Payment of property tax and water tax - Wealth Tax and Urban Land Tax assessment - Rents collected - Ouster and adverse possession
Fact of the Case:
The plaintiff filed a suit for partition of the property, claiming a share as the son of the common ancestor. The trial court held in favor of the defendants, citing adverse possession and lack of evidence of common ownership. The appellate court reversed the decision, decreeing the suit. The second appeal was filed by the defendants challenging the appellate court's decision.
Finding of the Court:
The trial court's judgment was detailed and considered all evidence, while the appellate court's judgment was inadequate and showed a lack of understanding of the facts and disputes. The court found that the property was purchased by the common ancestor and was available for partition. The appellate court's failure to consider the 'C' schedule of O.P.No.92 of 1952 and the plaintiff's admission regarding the property was crucial. The court also found the appellate court's reasoning on adverse possession to be baseless and remanded the case for reconsideration.
Issues: The substantial questions of law framed in the second appeal were related to the earlier partition decree, non-disclosure of the suit property, adverse possession, and the appellate court's judgment.
Ratio Decidendi: The court found that the property was available for partition and the failure to include it in the 'C' schedule of O.P.No.92 of 1952 was significant. The plaintiff's admission regarding the property and the appellate court's flawed reasoning on adverse possession were crucial in the court's decision to remand the case for reconsideration.
Final Decision: The second appeal was allowed, and the case was remanded to the lower appellate court for fresh consideration of the merits of the entire appeal.
1. This second appeal is directed against the judgment of the learned District Judge, Coimbatore, in A.S. No.129 of 1986, reversing the judgment of the learned Principal District Munsif, Coimbatore, in O.S.No.2145 of 1981. Defendants 2 and 3 in the suit are the appellants in the above second appeal.
2. The suit was filed by the plaintiff for a decree directing the defendants to divide the suit property into three equal shares by metes and bounds and the plaintiff be allotted and put in exclusive possession of one such separate share and granting such ancillary and incidental reliefs. According to the plaintiff, late Ponnai Gowder is the common ancestor of the plaintiff and the defendants. The plaintiff is the son of Ponnai Gowder. The other two sons of Ponnai Gowder being Dasai Gowder and Ponniah Rajan. Both of them are since dead and the first defendant is the son of Dasai Gowder, the second defendant is the wife of Dasai Gowder and the third defendant is the daughter of Dasai Gowder and they are the legal heirs of Dasai Gowder and constitute the members of his family. The fourth defendant is the son of Ponniah Rajan and the fifth defendant is the wife of Ponniah Raj an and they are the legal heirs of Ponniah Rajan constituting the members of his family. After Ponnai Gowder died in the year 1944, there was a partial partition between the plaintiff and Dasai Gowder and Ponniah Rajan in the year 1948. As disputes arose between three brothers, the matters were referred to Arbitration by Mr. C.S. Rathnasabapathy Mudaliar, who passed an award on 11.11.1951. The plaintiff obtained a decree in terms of the award on 5.4.1958 in O.P.No.92 of 1952 on the file of Sub Court, Coimbatore. The said award had become final and the plaintiff, Dasai Gowder and Ponniah Rajan were holding and enjoying the respective properties allotted in accordance with the said Arbitration award and decree. According to the plaintiff, the plaint schedule property being a building site with a tiled shed was purchased by Ponnai Gowder under a sale deed dated 20.8.1930. Though the property was an ancestral family property, liable for division between three sons of Ponnai Gowder, no division of property was effected under the decree in O.P.No.92 of 1952. The property was held in common and division was postponed. The reason why the plaint property was not divided at all was that there was a proposal to give the said property to R.Rajagopal who was a devoted employee of the family from the year 1930 and was a trusted driver of Ponnai Gowder during his life time. It was in view of the said proposal the property was left out of the partition. However, subsequently, the proposal did not materialise and was given up. Even before the death of Dasai Gowder in the year 1976, the plaintiff approached him with regard to the property, but as he was very sick, the subject was not pursued with him and no partition was effected. Subsequently, the plaintiff was approaching defendants 1 and 2 for partition of properties, but they were evading the issue and in May, 1981, the second defendant had advanced untenable contentions that the property belongs to their branch and there was no question of any partition. The plaintiff was shocked by the stand of the second defendant and subsequently, discovered that in a partition in their family of the first defendant in the year 1976 they had allotted the whole of the said property to the share of the first defendant as if their branch was entitled to the entire property.
3. In the written statement filed by the first defendant and adopted by defendants 2 and 3, it is stated that the suit property was allotted exclusively and given to Dasai Gowder who was holding and enjoying the same as his exclusive and absolute property. There was no proposal to give the property to the driver Rajagopal. Neither the plaintiff nor the said Ponniah Rajan had ever claimed any right in the said property after 1948 since when Dasai was holding the s
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