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2018 Supreme(Mad) 1066
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
Sivaraj @ Nanjundiah and Another – Appellants
Versus
Nagarathinamma – Respondent
S.A. No. 259 of 2015 and M.P. No. 1 of 2015
Decided On : 05-04-2018
For the Appellant : P. Mani.
For the Respondents: J. Hariharan, V. Nicholas.
Headnote:
Civil Laws – Suit for partition – Plaintiffs filed a suit in O.S. on the file of the District Munsif-cum- Judicial Magistrate Court, Denkanikottai, to pass a preliminary decree directing the defendants to divide the suit property and to allot 9/48th share to them and to allot separate possession – Held, Seventh defendant/respondent had filed documents to prove her continuous possession. – PW-1, who is the first plaintiff, had categorically deposed that at the time of partition, the suit property was not a joint family property and it was not included in the partition, because it was classified as poramboke land. – He has also further admitted that he had knowledge about the issuance of patta in favour of the seventh defendant/respondent. – Thus, the plaintiffs, who claimed partition contending that the suit property are joint family properties, had miserably failed in their efforts to prove the same. – Seventh defendant had based her claim on the Will, even in the absence of proof of the same, she had produced the documents evidencing her continuous possession from 1979. – Even presuming that the suit property was treated as a joint family property, the burden is on the person, who claims it to be the joint family property. – In this case the plaintiffs, who claimed that the suit property was only a joint family property, had not proved that the suit property belonged to the joint family even before the partition or after the patta was issued in the name of the seventh defendant/respondent. – The plaintiffs also had not issued any notice claiming that they had a right in this property, being the joint family property. – Second Appeal Dismissed
1. The unsuccessful plaintiffs in a suit for partition are the appellants.
2. The plaintiffs filed a suit in O.S. No. 112 of 2004 on the file of the District Munsif-cum- Judicial Magistrate Court, Denkanikottai, to pass a preliminary decree directing the defendants to divide the suit property and to allot 9/48th share to them and to allot separate possession.
3. The case of the plaintiffs is as follows:
(i) The suit property originally belonged to one Nanjundaiah @ Nanjundasetty and his brother Mallan @ Mallikarjuna Setty, which is an extent of 0.78 cents in Survey No. 213/2. The revenue records stood in the name of the said Mallan @ Mallikarjuna Setty. As the said Mallan left the village in the year 1903 for Bengaluru, his brother Nanjundaiah was in possession and enjoyment of the suit property by constructing a house. He also constructed a temple in the suit land and performed poojas. He also dug a well in the suit property. He died intestate leaving behind his two sons, Madhaiah Setty and Madhappa Setty to succeed the suit property.
(ii) After the death of Nanjundaiah, his sons Madhaiah Setty and Madhappa Setty were in joint possession and enjoyment of the suit property. Without their knowledge, in the revenue records the suit property has been mentioned as Thoppu poramboke. Form 7A notices were also issued to the Madhaiah Setty by the Government in respect of the suit property. There was a partition deed dated 22.06.1976 between Madhaiah Setty and Madhappa Setty in respect of all other properties, except the suit property. Since the suit property was classified as Thoppu poramboke, it was not included in the partition deed.
(iii) The said Madhaiah Setty died intestate leaving behind the plaintiffs and defendants 1 to 6 as his legal heirs and the Madhappa Setty died leaving behind the defendants 7 to 10, as his legal heirs. Thus, the plaintiffs and the defendants are in joint possession and enjoyment of the suit property.
(iv) Thereafter, an extent of 0.03 cents was allotted for construction of a Co-operative ration shop and an extent of 0.05 cents was allotted for the construction of the temple, and thus, an extent of 0.70 cents of lands were in the possession and enjoyment of the plaintiffs and defendants, i.e. the suit property.
(v) It is stated that in the year 1999, suppressing the above said facts, the seventh defendant had obtained a patta claiming that the Mallan had executed a Will in her favour. On the basis of such invalid patta, the seventh defendant attempting to create third party interest in the suit property. Hence, the plaintiffs filed a suit for partition in O.S. No. 80 of 2001 on the file of the same Court and the same was withdrawn to file a fresh suit. Accordingly, the present suit was filed.
4. Resisting the suit, the seventh defendant/respondent herein had filed the written statement denying the allegations raised by the plaintiffs. It is her case that the suit property belonged to Mallan and he did not leave for Bengaluru, as claimed by the plaintiffs, but on the other hand, he was in her care and custody. It is her further case that the Nanjundaiah was never in possession of the suit property and he did not construct the house, so also the temple. She also denied that the sons of Nanjundaiah were in joint possession and enjoyment of the suit property. It is admitted by the seventh defendant that there was a partition dated 22.06.1976, which clearly, excludes the suit property. It is stated that the suit property is not a joint family property, but it belonged to Mallan, who executed a Will in her favour in the year 1979. Based on the same, she got a patta dated 11.10.1999. It is claimed by her that she constructed the house in the suit property and she is in possession and enjoyment of the suit property, by paying necessary taxes and electricity charges. Contending so, she prayed for dismissal of the suit.
5. Before the trial Court, the first plaintiff examined himself as PW-1, in addition to exami
