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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Kumarasamy
Versus
Rajkumar & Others
S.A(MD)No.209 of 2008 & M.P(MD)No.1 of 2008
Decided On :Decided on : 24-11-2011
partition suit - Evidence Act - sec.10 - sec.100 of the Code of Civil Procedure - oral partition - burden of proof - perversity in judgment - admission of evidence - substantial question of law - reliance on isolated statement - reversal of judgment and decree - absence of evidence - remand to trial Court
Fact of the Case:
The plaintiff filed a suit for partition of properties, which was decreed by the trial Court but reversed by the first appellate Court. The plaintiff appealed, raising substantial questions of law regarding the judgment's perversity and reliance on isolated evidence.
Finding of the Court:
The first appellate Court's reliance on a single statement from the plaintiff's cross-examination to reverse the trial Court's judgment was unjustified. The defendants failed to provide evidence to support their plea of oral partition, and the first appellate Court did not consider the entire deposition of witnesses.
Issues: The issues revolved around the burden of proof in a partition suit, the admissibility of evidence, and the perversity of the first appellate Court's judgment.
Ratio Decidendi: The Court emphasized the need to consider the entire deposition of witnesses, the burden of proof in a partition suit, and the requirement for substantial compliance with procedural rules in appellate proceedings.
Final Decision: The Court set aside the judgments of both lower Courts and remanded the case to the trial Court for further proceedings, directing the plaintiff to implead additional legal heirs and clarify his position.
1. This second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 22.12.2006 made in A.S.No.192 of 2006 on the file of the I Additional Sub Judge, Tirunelveli, in reversing the judgment and decree dated 25.04.2005 made in O.S.No.94 of 2000 on the file of the Principal District Munsif cum Judicial Magistrate, Nanguneri.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary for the disposal of this second appeal would run thus:
The plaintiff filed the suit for partition of the properties described in the schedule of the plaint and for allotment of his 1/3rd share.
4. The defendants 1 to 4 filed the written statement resisting the suit by contending that the various family properties including the suit property were partitioned and as such, there is no question of partitioning the suit property once again would arise.
5. The fifth defendant did not file any written statement resisting the suit.
6. The sixth defendant being the purchaser of a portion of the suit property from the fifth defendant, filed the written statement in commensurate with the written statement filed by the defendants 1 to 4. During the pendency of the suit, the defendants 7 to 10, the daughters of the deceased Ramanarayanaperumal who was the brother of the plaintiff got themselves impleaded and they filed the written statement supporting contention of the plaintiff.
7. Whereupon the trial Court framed the relevant issues.
8. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.9 were marked on his side. When the matter was posted for the defendants side, it appears that the chief-examination affidavit of the fourth defendant -Rajeshkumar was filed, but he did not submit himself for cross-examination. Whereupon the defendants side was closed and as such, neither oral nor documentary evidence was let in on the side of the defendants.
9. Ultimately, the trial Court decreed the suit ordering the partition of the suit property and granting 1/3rd share in it to the plaintiff, as against which the sixth defendant alone filed the appeal. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and dismissed the original suit.
10. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the present second appeal has been filed by the plaintiff on various grounds and also suggesting the following substantial questions of law:
"(A) Whether the Judgment of the 1st Appellate Court is against sec.10 of the Evidence Act, since patta for the suit properties stand in the name of all co-owners including the plaintiff and no separate patta is made out individually for the parties concerned?
(B) Whether the Judgment of the 1st Appellate Court holding that the suit properties were orally partitioned is based on inadmissible evidence and hence perverse especially when patta for the suit properties is still joint?
(C) When the plaintiff alleges that some properties were partitioned and some properties are not partitioned on whom the burden of proof lies, especially when there is mutation of names in respect of first mentioned properties alone?
(D) When there is complete variance between the pleadings of D.W.1 and his oral evidence whether 1st Appellate Court is legally right in allowing the appeal especially when the appellant in the 1st Appeal did not examine himself as witness and when D.W.1 though a defendant did not prefer any 1st Appeal?"
(extracted as such.)
11. My learned Predecessor framed the following substantial question of law:
"Whether the judgment and decree of the lower Court is perverse on account of its failure to consider the legal position that the patta obtained by one co-owner is deemed to be for the entire co-owners?"
(extracted as such.)
12. The dictum laid
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