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2017 Supreme(Mad) 1403
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
Teekaa Raman, J.
Lakshmi – Appellant
Versus
K.N.S. Nammalvar (Died) – Respondent
S.A. (MD) No. 374 of 2006
Decided On : 21-02-2017
For the Appellant : Mr. S. Pon Senthil Kumaran.
For the Respondent: Mr. R. Devaraj.
Headnote:
C.P.C., - Order 41, Rule 27 - Sake of convenience - Relief of declaration and injunction - Challenging the correctness of the Judgment and Decree - Suit property and other properties were initially owned and possessed by one wife - On said the said properties to her daughters sons During April they had orally partitioned the said properties and by which, the suit property and other properties were allotted - He died intestate leaving the plaintiffs as his legal heirs. They are enjoying the said properties. The first defendant had sold the properties allotted to him under the oral partition and spent the sale consideration also. But, he had requested for some shares in the suit property. Since the plaintiffs refused the same, the first defendant trespassed into the suit property by breaking the lock of the suit property – Held, though as per Ex.A1 the suit property and other properties have been devolved upon the four brothers and they have been divided among themselves, which property was allotted to whom and whether the suit property was allotted to Gopalsamy and if so, what portion have not been projected by the appellants/plaintiffs in the manner known to law and thus, both the Courts below have concurrently held that the appellants /plaintiffs failed to prove the oral partition among the brothers and the suit property was allotted to Gopalsamy in that alleged oral partition and therefore, the appellants/plaintiffs are not entitled to the relief of declaration of title. Further, both the Courts below have held that based upon Exs.A9 and A10, the first defendant and Seenivasan were alone the resident of the suit property and in the absence of any title to the suit property - second appeal is dismissed
Teekaa Raman, J.
1. The unsuccessful plaintiffs are the appellants herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiffs filed the suit, in O.S. No. 39 of 1999, before the learned District Munsif, Kovilpatti, for the relief of declaration and injunction.
4. After contest, the learned District Munsif, Kovilpatti, by Judgment and Decree, dated 22.01.2003, dismissed the suit.
5. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Kovilpatti, the plaintiffs preferred an appeal, in A.S. No. 22 of 2003, before the learned Subordinate Judge, Kovilpatti.
6. After contest, the learned Subordinate Judge, Kovilpatti, by Judgment and Decree, dated 12.11.2005, dismissed the appeal and confirmed the Judgment and Decree passed by the learned District Munsif, Kovilpatti.
7. Challenging the correctness of the Judgment and Decree passed by the learned Subordinate Judge, Kovilpatti, the unsuccessful plaintiffs have preferred the present second appeal.
8. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The suit property and other properties were initially owned and possessed by one Lakshmi Ammal, wife of Gopalsamy. On 15.09.1943, the said Lakshmi Ammal settled the said properties to her daughter's sons, namely, Seenivasan, Alavandar, Gopalsamy and Nammalvar. During April, 1969, they had orally partitioned the said properties and by which, the suit property and other properties were allotted to Gopalsamy. He died intestate leaving the plaintiffs as his legal heirs. They are enjoying the said properties. The first defendant had sold the properties allotted to him under the oral partition and spent the sale consideration also. But, he had requested for some shares in the suit property. Since the plaintiffs refused the same, the first defendant trespassed into the suit property by breaking the lock of the suit property. Hence, the suit.
9. The brief averments of the written statement filed by the defendants that are necessary to decide this appeal are as follows:
The suit filed by the plaintiffs is not maintainable on legal and factual aspects. The defendants are in possession and enjoyment of the suit property and other properties. As per the Settlement Deed, dated 15.09.1943, Seenivasan, Alavandar and Gopalsamy had never enjoyed the suit property. It is false to state that the suit property was allotted to Gopalsamy under the oral partition. It is an admitted fact that Gopalsamy died intestate leaving the plaintiffs as legal heirs. He started to live in Chennai 40 years back itself. He has no share in the suit property. Though the properties stated in the Settlement Deed, dated 15.09.1943, stood in the name of Seenivasan, Alavandar, Gopalsamy and Nammalvar, the said Alavandar and Gopalsamy started to live in Chennai 40 years back. The said Seenivasan, Alavandar and Gopalsamy orally released their shares in the suit property and other properties in favour of the first defendant. Since then, the second defendant is in possession and enjoyment of the same. The plaintiffs, who had never raised any objections when Gopalsamy was alive, have now filed the suit. The said Alavandar, who was a party in the Settlement Deed, has not been impleaded as a party to the suit and hence, the suit is liable to be dismissed.
10. Based upon the above pleadings, the Trial Court had framed four issues for consideration.
11. On the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A24 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B16 were marked.
12. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs have not established their case properly and hence dismissed the suit.
13. As stated supra, the unsuccessful plaintiffs preferred first appeal in A.S. No. 22 of 2003, before the learned Subordinate Judge, Kovi
