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2017 Supreme(Mad) 3887
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RMT. TEEKAA RAMAN, J.
Veeraiah - Appellant
Vs.
Subbiah (Died) & Ors. - Respondents
S.A.(MD) No. 1523 of 1994
Decided On : 03-11-2017
For the Appellant : Mr. R. Subramanian.
For the Respondents: Mr. V.K. Vijayaraghavan.
Headnote:
Civil Laws – Relief of declaration and permanent injunction – Plaintiff filed the suit, in O.S., before Subordinate Judge, Pattukottai, for the relief of declaration and permanent injunction – Aggrieved by the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai, the plaintiff preferred an appeal, in A.S., before District Judge, Thanjavur – Whether the Courts below are right in recording a finding on the earlier partition in spite of an admission by the first defendant about the joint family character of the properties – Whether Exs.A19 and B13 and B17 have been properly construed or misconstrued by the courts below in recording its finding on the earlier partition – Whether the courts below are right in denying the relief of partition to the plaintiff – Held, Court finds that the plea taken by the first defendant that there was no partition in the written statement need not be gone into in view of the enmity shown by the first defendant with the third defendant after executing a settlement deed in Ex.A15 which was upheld in the Sub-Court under Ex.A17 and in view of the specific plea taken by the third defendant, the donee under the Ex.A17 settlement deed that there was a oral partition coupled which evidenced from Ex.A19 and A13 and B17, the Courts below have concurrently come to the conclusion that there was a previous partition between the parties as early as on 1963 and further interpretation of the recital under Ex.B1 and B2 and B17 are only in accordance with law established in respect of title and possession and the validity of the settlement deed which was upheld by the Sub-Court in Judicial decision which was also attained finality and in view of the earlier partition between the partition, both the Courts below have right in denying the relief of the plaintiff and hence, all the substantial question of law are answered in negation against the plaintiff and this appeal is devoid of merits accordingly. – Second Appeal Dismissed
The unsuccessful plaintiff is the appellant herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiff filed the suit, in O.S.No.80 of 1984, before the learned Subordinate Judge, Pattukottai, for the relief of declaration and permanent injunction.
4. After contest, the learned Subordinate Judge, Pattukottai, by Judgment and Decree, dated 23.07.1990, dismissed the suit.
5. Aggrieved by the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai, the plaintiff preferred an appeal, in A.S.No.60 of 1992, before the learned District Judge, Thanjavur.
6. After contest, the learned District Judge, Thanjavur, by Judgment and Decree, dated 02.09.1994, dismissed the appeal, and confirmed the Judgment and Decree passed by the learned Subordinate Judge, Pattukottai.
7. Aggrieved by the dismissal of the appeal, the plaintiff has preferred the present second appeal.
8. The brief averments of the plaint that are necessary to decide this appeal are as follows :
Palani, who is the father of the plaintiff, defendants 6 and 7 and husband of the 8th defendant and the first defendant, namely, Vellaichamy are bothers. They do not have any ancestral properties. Palani died during 1972. Item No.I of the suit schedule property and the property situated on the western side of Item No.I purchased on 01.07.1930 and owned by Palani. Item No.II and the property situated on the eastern side of Item No.II purchased on 25.10.1956 and owned by Palani and the first defendant, namely, Vellaichamy, jointly. After two years, there was an oral partition, whereby and whereunder, Item No.II of the suit schedule property was allotted to the share of Palani and ever since the date of partition, he was in possession and enjoyment of Item No.II of the suit schedule property. Item No.III of the suit schedule property is concerned, it has been purchased by Palani, during 1958 under oral sale for a sum of Rs.80/- and thereafter, he had planted coconut trees and he had been in possession of the same for more than 12 years without any objection of anybody. Therefore, he got adverse possession. After the demise of Palani, the plaintiff and the defendants 6 to 8 became the absolute owners of the said property. In order to avoid objection from the first defendant, through the defendants 6 to 8, he was also impleaded as a party to the proceedings. He do not have any right, title or interest over the suit property. The defendants 1 to 5 seem to have created a forgery settlement deed in respect of the suit schedule property and some other properties. Since the defendants 1 to 5 claimed right over the suit schedule properties, the plaintiff filed the suit seeking the relief as stated above.
9. The brief averments of the written statement filed by the first defendant that are necessary to decide this appeal are as follows :
The suit schedule properties were belonged to the father of the plaintiff and the first defendant. Till the demise of the plaintiff's father, he only managed the suit schedule properties and thereafter, the first defendant managed the same in the capacity of Family Administrator. While the plaintiff's was alive, he purchased some properties in his name and some properties in the name of the first defendant. At that time, no partition was effected. However, the first defendant cultivated Item Nos.I and II of the suit schedule properties by residing in Item No.III of the suit schedule property. The first defendant is in absolute possession and enjoyment of Item No.II of the suit schedule property, measuring an extent of 01 Acre. However, in the plaint, it is wrongly mentioned 50 Cents. The third defendant obtained Item Nos.I and II suit schedule properties from first defendant under a forgery settlement deed. The said forgery came to the knowledge of the first defendant only when the fourth defendant tried to interrupt his possession of the suit schedule properties. Therefore, the
