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2018 Supreme(Mad) 3875
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
A. KAKKAPPAN (DIED) - Appellant
Vs.
KARUPPAYEE AMMAL - Respondent
Second Appeal No. 318 of 2007; Miscellaneous Petition No. 1 of 2007, 2 of 2008
Decided On : 18-09-2018
T.S.R. Venkatramana, Adv., P. Jessi Jeeva Priya, Adv., A. Bhuvaneshwari, Adv.
The burden of proof lies with the plaintiff to establish title and entitlement to partition, and the court emphasized the importance of evidence in proving the availability of properties for partition.
Headnote:
Partition - Suit Properties - [Civil Procedure Code, Order 41 Rule 27] - [Summary of Acts and Sections]
Fact of the Case:
The plaintiff filed a suit seeking partition and separate possession of undivided shares in the suit schedule properties. The trial court decreed the suit except with respect to certain properties. The first defendant filed an appeal challenging the decree, leading to the present Second appeal.
Finding of the Court:
The court found that the plaintiff failed to prove title and entitlement to partition for certain properties. The first respondent was granted partition and separate possession of 1/4 undivided share only with respect to specific properties, while the suit was dismissed with respect to other properties.
Issues: The issues revolved around the entitlement to partition and separate possession of specific properties, the burden of proof on the plaintiff, and the grant of partition in the absence of evidence of title.
Ratio Decidendi: The court held that the burden of proof lies with the plaintiff to establish title and entitlement to partition. It also emphasized the importance of evidence in proving the availability of properties for partition.
Final Decision: The Second appeal was partly allowed, granting partition and separate possession of 1/4 undivided share to the first respondent only with respect to specific properties, while dismissing the suit with respect to other properties.
C.V. Karthikeyan, J.
The Second appeal had been filed by the first defendant in O.S.No.418 of 1999 on the file of the II Additional Subordinate Court, Madurai.
2. O.S.No.418 of 1999 had been filed by the plaintiff Karuppayee Ammal, seeking partition and separate possession of undivided 1/5th share in the suit schedule properties. When the suit was filed, there were 7 items of properties. The plaintiff had filed the suit against her brother Kakkappan, her mother Pitchiammal and her two sisters Panchavarnam, Jothi and a fifth defendant Periya Karuppan. The fifth defendant was impleaded since he was said to be negotiating to purchase the tenancy rights in the 6th and 7th items of properties. Item Nos.1 to 5 were grouped in 'A' schedule and item Nos.6 & 7 were grouped in 'B' schedule. It was stated that the father of the plaintiff enjoyed lease hold rights in item Nos.6 & 7 to the plaintiff. Pending the suit, the second defendant Pitchai Ammal, the mother of the parties died. Consequently, the shares which was sought was amended from 1/5th to 1/4th undivided share. It must also to be mentioned that on 12.02.2004 three further item of properties were included as 8, 9 & 10 and like item No.6 & 7 undivided share in the tenancy rights were sought in these three properties also. This suit was decreed by the trial Court except with respect of item No.2. The plaintiff was granted a preliminary decree for 1/4th undivided share in item Nos.1, 3 to 10 suit properties. This was by Judgment and Decree dated 23.04.2004 passed by the learned II Additional Subordinate Court, Madurai.
3. Thereafter, the first defendant had filed A.S.No.138 of 2004 which came up for consideration before the Additional District Court (FTC I), Madurai. By Judgement and Decree dated 26.07.2006, the preliminary decree was modified and the suit was also dismissed with respect to the 4th item of suit property.
4. Challenging the said Judgment and Decree the first defendant had filed the present Second appeal. At the time of admission, the following substantial questions of law were framed.
1. Whether the Courts below were right in decreeing the suit for partition of items 8, 9, 10 which didn't belong to the HUF and in absence of documents of title to them.
2. When cultivation of items 6 & 7 being a contractual right between the landlord and tenant involving physical labour, can the tenancy right be a subject matter of partition especially when the landlord is not before the Court and when the tenancy right is not the suit item and Appellant has already given up the same..
5. M.P(Md) No.1 of 2007 had been filed, seeking stay of all further proceedings pursuant to the grant of decree of partition by the trial Court and by the first Appellate Court. Since this Judgment is passed in the main Second appeal itself MP(MD) No.1 of 2007 does not survive and is accordingly, closed.
6. M.P.(Md) No.2 of 2008 had been filed by the appellant under Order 41 Rule 27 of Civil Procedure Code, seeking to produce as additional evidence three sale deeds in respect of item Nos.8, 9 & 10 suit schedule properties.
7. In the plaint, the plaintiff had stated that the suit schedule properties originally belonged to her father Ayyannan Ambalam who was an agriculturist. He had two wives. The first wife was Ayyammal and the second wife was Pitchai Ammal. The first defendant Kakkappan was born through the first wife. The plaintiff Karuppayee Ammal, the third defendant Panchavarnam and the fourth defendant Jothi were born through the second wife. Pitchai Ammal who was also impleaded as the second defendant. The other children born to Ayyammal and Pitchai Ammal died even before filing of the suit. The 'A' schedule properties which included item Nos.1 to 5 were said to be house properties. The 'B' schedule properties which included item Nos.6 to 10 were in the possession of Ayyannan Ambalam as cultivating tenant. Claiming that the plaintiff has a undivided 1/5th share which was later amended to undivided
