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2018 Supreme(Mad) 1031
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Kamatchi Ammal & Others - Appellants
Versus
Vajravelu Gounder (deceased) & Others - Respondents
S.A. No. 2160 of 2003 & C.M.P. No. 20014 of 2003
Decided On : 28-03-2018
For the Appellants :P. Dinesh Kumar, M/s. Sarvabhauman Associates, Advocates.
For the Respondents:P. Mani, Advocate.
The plaintiff must establish valid proof of oral partition and possession of the suit property to claim ownership.
Headnote:
declaration - partition of property - 1923 Partition Deed, 1949 Partition Deed - Ex.A1, Ex.A2, Ex.B1/A15 - The court discussed the validity of oral partition, the description of the suit property, and the possession and enjoyment of the property. The court found that the plaintiff failed to establish the oral partition and possession of the suit property, and upheld the judgment and decree of the trial court.
Fact of the Case:
The suit involved a dispute over the ownership and possession of a property that was subject to partition deeds in 1923 and 1949. The plaintiff claimed that the property was allotted to his grandfather and then to his father, while the defendant claimed exclusive ownership and possession.
Finding of the Court:
The court found that the plaintiff failed to establish the oral partition and possession of the suit property, and upheld the judgment and decree of the trial court, dismissing the suit.
Issues: Validity of oral partition, description of the suit property, possession and enjoyment of the property.
Ratio Decidendi: The plaintiff failed to provide valid proof of the oral partition and possession of the suit property, and the court upheld the judgment and decree of the trial court.
Final Decision: The judgment and decree of the trial court were confirmed, and the second appeal was allowed with costs.
1. This second appeal is directed against the judgment and decree dated 24.09.2003 passed in A.S.No.70 of 2003 on the file of the District Court, Thiruvannamalai reversing the judgment and decree dated 20.03.2002 passed in O.S.No.258 of 1997 on the file of the Additional District Munsif Court No.I, Thiruvannamalai.
2. The parties are referred to as per the rankings in the trial court.
3. Suit for declaration and permanent injunction.
4. The suit property originally belonged to Kulla Gounder, who had three sons namely Pattusamy Gounder, Chinnaiya Gounder and Muthusamy Gounder and the three brothers abovestated divided, the properties by way of a registered partition deed dated 26.11.1923 and originally the suit property in suit survey number 29/2, 0.10 cents was kept in common. There was a partition of the abovesaid suit property between the brothers some 60 years ago and the suit property fell to the share of Pattusamy Gounder and he was in possession and enjoyment of the same, till his death and his two sons namely Ganesan and Nanda Gopala Krishnan divided the suit property and other properties by way of registered partition deed dated 07.09.1949 and the suit property fell to the share of Ganesa Gounder and Ganesa Gounder had two sons namely the plaintiff Sundaram and Mani and one daughter Parasakthi and in the oral partition effected amongst them, the suit property fell to the share of the plaintiff and the plaintiff has been in possession and enjoyment of the suit property, by putting up the thatched house and running a petty shop and firewood shop and obtained electric service connection and the first defendant, who is the son of Muthusamy Gounder has no share in the suit property and while so, the first defendant claiming the right over the suit property, attempted to trespass into the suit property without any legal right and hence according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendant in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is true that the sons of Kulla Gounder partitioned their properties, by way of a partition deed dated 26.11.1923 and it is false to state that subsequently the suit property fell to the share of Pattusamy Gounder and the defendants are not aware of the partition effected amongst the sons of Pattusamy Gounder and the plaintiffs are put to strict proof of the partition deed dated 07.09.1949. According to the defendants, the first defendant is the exclusive owner of the suit property and in possession and enjoyment of the same and the suit property has not been properly described. The suit survey number 29/2 had been sub divided as 29/2A to 29/2F and the plaintiff has not given the subdivision number in the plaint schedule. Ganesa Gounder, Chinnaiya Gounder, and the mother of the first defendant namely Valliammal partitioned the suit property and other properties by the virtue of the partition deed dated 26.07.1954, by way of which, the suit property was allotted to the share of the first defendant's mother and since then, it is only Valliammal, who had been in possession and enjoyment of the suit property and the first defendant being her sole legal heir is entitled to the same and the first defendant had dealt with the suit property for obtaining loan etc., and it is only the first defendant, who has been in possession and enjoyment of the suit property, by putting up a flour and oil mill and therefore, the plaintiffs are entitled to the reliefs sought for.
6. In support of the plaintiff's case, P.Ws.1 and 2 were examined.Exs.A1 to A15 were marked. On the side of the defendant, D.W.1 was examined.Exs.B1 to B5 were marked. Exs.C1 and C2 were also marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to dismiss the suit. On appeal, on an appreciation of the materials placed on
