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2018 Supreme(Mad) 3096
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
MARAPPA GOUNDER — Appellant
Vs.
N.M. DURAISAMY — Respondent
Second Appeal No. 378 of 2015
Decided on : 29-10-2018
Advocate Appeared:
A.R. Suresh, Adv., P. Valliappan, Adv.
Headnote:
Possession of Land - Parties are referred to as per their rankings in trial Court - Suit for Declaration and Permanent injunction - Case of plaintiff in brief is that first defendant is his father and second defendant is his sister and according to plaintiff suit properties are ancestral properties of plaintiff and first defendant and further according to plaintiff suit properties were in joint possession and enjoyment of plaintiff and defendants and in month of April plaintiff and first defendant orally partitioned suit properties and as per oral partition effected entire suit properties were allotted to share of plaintiff and as first defendant was unable to work in lands due to his old age he relinquished his share in suit properties in favour of plaintiff by receiving a sum from plaintiff and plaintiff had also agreed to discharge family debts to tune and accordingly repaid same and second defendant was given in marriage with sufficient and she had also relinquished her share in suit properties and from date of oral partition in April plaintiff is in possession and enjoyment of suit properties by making improvements in same – Held, When there is no material worth acceptance pointing to same - As noted oral relinquishment projected by plaintiff being legally unsustainable in all it is seen that oral partition projected by plaintiff has not been established - First appellate Court failing to appreciate case of plaintiff particularly burden of proof to establish factum of partition squarely lies on plaintiff without directing plaintiff to discharge said burden is found to have accepted plaintiffs case based on weakness of defendants case and in such view of matter it is seen that first appellate Court has erroneously set aside Judgment and decree of trial Court and proceeded to grant reliefs in favour of plaintiff as prayed for - However when in light of decisions of Supreme Court as well as our High Court party who has come forward with case has to establish his pleas by projecting acceptable and reliable materials independent of defence version plaintiff having failed to establish his case cannot be allowed to seek reliefs sought for based on weakness of defence version - Accordingly substantial questions of law formulated in second appeal are answered against plaintiff and in favour of defendants - Appeal is allowed.
T. Ravindran, J.
Challenge in this second appeal is made to the Judgment and Decree dated 21.07.2014 passed in A.S.No.17 of 2011 on the file of the Subordinate Court, Gopichettipalayam, Erode District, reversing the Judgment and Decree dated 27.04.2011 passed in O.S.No.38 of 2008 on the file of the District Munsif Court, Gopichettipalayam, Erode District.
2. The parties are referred to as per their rankings in the trial Court.
3. Suit for Declaration and Permanent injunction.
4. The case of the plaintiff, in brief, is that the first defendant is his father and the second defendant is his sister and according to the plaintiff, the suit properties are the ancestral properties of the plaintiff and the first defendant and further, according to the plaintiff, the suit properties were in the joint possession and enjoyment of the plaintiff and the defendants and in the month of April, 1990, the plaintiff and the first defendant orally partitioned the suit properties and as per the oral partition effected, the entire suit properties were allotted to the share of the plaintiff and as the first defendant was unable to work in the lands due to his old age, he relinquished his share in the suit properties in favour of the plaintiff by receiving a sum of Rs. 1,00,000/- from the plaintiff and the plaintiff had also agreed to discharge the family debts to the tune of Rs. 1,50,000/- and accordingly, repaid the same and the second defendant was given in marriage before 25 years with sufficient Sridhana and she had also relinquished her share in the suit properties and from the date of the oral partition in April 1990, the plaintiff is in the possession and enjoyment of the suit properties by making improvements in the same and thereby, incurred expenditure in a considerable sum of Rs. 2,00,000/- and also paying kist to the Government and after the oral partition, the defendants do not have any right in the suit properties and on coming to know that the plaintiff has taken steps to get the patta transferred to his name in respect of the suit properties, the first defendant demanded a sum of Rs. 50,000/- from the plaintiff again and as the plaintiff was unable to accept the demand of the first defendant, according to the plaintiff, the defendants started to interfere with his possession and enjoyment of the suit properties and thereby, denied the title of the plaintiff to the suit properties and also the first defendant has filed a suit in O.S.No.2 of 2008 on the file of the District Munsif Court, Gobichettipalayam against the plaintiff with false averments and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that after admitting that the items 1, 2, 3, 5, 8, 10, 11 are all the ancestral properties, according to the defendants, the items 4, 6, 7, 9 are all acquired by the first defendant and they are all the self acquired properties of the first defendant and the plaintiff led a wayward life, used to steal things, ranaway from home and later returned home and the allegation that the suit properties were divided orally in April 1990 is false and the further allegation that in the said oral partition, the first defendant relinquished his right in the suit properties by receiving a sum of Rs. 1,00,000/- is also false and the further allegation that the plaintiff discharged the family debts to the tune of Rs. 1,50,000/- is also false and the first defendant has already filed O.S.No.2 of 2008 on the file of the District Munsif Court, Gobichettipalayam for the relief of permanent injunction restraining the plaintiff and his men from obstructing or interfering with his possession and enjoyment of the suit properties and it is true that the second defendant was married 25 years ago, however, it is false to state that she had been provided sufficient sridhana and thereby, she had also relinquished her share in the suit properties at the time of the alleged
