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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. BASKARAN, J.
Andivel Chettiar and Ors. - Appellants
Versus
Murugesan and Ors. - Respondents
S.A.(MD) No. 406 of 2014
Decided On : 26-07-2018
Evidence Act,1872 - Section 101 - Suit for Partition - Suit for Permanent Injunction - Suit for cancellation of Sale Deed - Suit property originally belonged to grand mother of Plaintiffs by name - Said along with his brothers have purchased Suit property and other properties - During their life time grand mother of Plaintiffs namely partitioned her share and she was in possession and enjoyment of property - Said died leaving behind her Legal Heirs namely mother of Plaintiffs one Nachammal and her brother First Defendant herein - After that said Nachammal mother of Plaintiffs and First Defendant jointly enjoyed property - Mother of Plaintiffs died leaving behind her Legal Heirs - After death of his mother Plaintiffs demanded Partition with First Defendant - At that time Plaintiffs came to know that First Defendant executed Settlement Deed in favour of his wife Second Defendant - Again Second Defendant sold Suit property to Defendants - Hence Plaintiffs came forward with Suit for Partition for Permanent Injunction for cancellation of Sale Deed executed by Defendant in favour of Defendants and also for Costs - Defendants denied rights of Plaintiffs and stated that First Defendant executed Settlement Deed in favour of Second Defendant and Second Defendant executed Sale Deed in favour of Defendants - Suit property was originally purchased by mother of First Defendant and her brother and subsequently in Oral Partition between and mother of First Defendant Suit property allotted to family of First Defendant - First Defendant was in possession and enjoyment of property even during life time of Nachammal - Whether Lower Appellate Court is right in reversing Judgment and Decree of Trial Court as Respondents and not discharged their burden that they are co-shares of Suit property by way of oral and documentary evidence as contemplated under Section 101 of Indian Evidence Act? - Whether Lower Appellate Court is right in reversing Judgment and Decree of Trial Court even though right and exclusive possession and enjoyment of Suit property are proved by Appellants by way of documents? - Held, In Court view correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess property on behalf of other co-sharers unless there has been a clear ouster by denying title of other co sharers and mutation in Revenue record in name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-shares was denied - Burden of proof - Whoever desires any Court to give Judgment as to any Legal right or liability dependent on existence of facts which he asserts must prove that those facts exist - When a person is bound to prove existence of any fact it is said that burden of proof lies on that person - Section 101 of Evidence Act clearly stated that persons seeking relief from Court must prove his case and he must succeed on his own strength - It is not disputed - Admittedly Suit property originally belonged one grandmother of Plaintiffs and mother of First Defendant - So mother of Plaintiffs and First Defendant are joint Owners and co-sharers for property of their mother - It is not case of First Defendant that he himself with deceased Nachammal partitioned property of their mother - Said Rangammal admittedly have not left any Will or Settlement Deed in favour of First Defendant - In such circumstances legally First Defendant and Mother of Plaintiffs Natchammal are absolute Owners of Suit properties - Against that right First Defendant claiming exclusive right of Suit property by a legal plea of ouster - So as per case Apex Court find burden of proof on First Defendant herein who is claiming absolute right by way of plea of ouster - In case on hand First Appellate Court has held likewise against Defendants herein - Hence First Substantial Question of Law raised by Defendants under Section 101 of Evidence Act is not sustainable as per law of Land - Second Appeal Dismissed
JUDGMENT :
S. Baskaran, J.
1. This Second Appeal arises out of the Judgment and Decree dated 7.2.2014 passed by the learned District Judge, Dindigul, in A.S. No. 46 of 2011, reversing the Judgment and Decree dated 25.7.2011 passed by the learned Sub-Judge, Palani, in O.S. No. 30 of 2008.
2. Brief facts of the case is as follows:
The Suit property originally belonged to the grand mother of the Plaintiffs by name Rangammal. The said Rangammal along with his brothers Rangasamy Chettiar and Gurusamy Chettiar have purchased the Suit property and other properties on 2.9.1957. During their life time, the grand mother of the Plaintiffs, namely, Rangammal partitioned her 1/3rd share and she was in possession and enjoyment of the property. The said Rangammal died on 1.11.1971 leaving behind her Legal Heirs, namely, the mother of the Plaintiffs one Nachammal and her brother, the First Defendant herein. After that the said Nachammal, the mother of the Plaintiffs and the First Defendant jointly enjoyed the property. The mother of the Plaintiffs died on 10.3.2007 leaving behind her Legal Heirs. After the death of his mother, the Plaintiffs demanded Partition with the First Defendant. At that time, the Plaintiffs came to know that the First Defendant executed the Settlement Deed in favour of his wife the Second Defendant on 25.5.2004. Again, the Second Defendant, on 29.11.2007 sold the Suit property to the Defendants 3 & 4. Hence, the Plaintiffs came forward with the Suit for Partition, for Permanent Injunction, for cancellation of Sale Deed executed by the 2nd Defendant in favour of the Defendants 3 & 4 and also for Costs.
3. The Defendants 1 & 2 denied the rights of the Plaintiffs and stated that the First Defendant executed the Settlement Deed in favour of the Second Defendant and the Second Defendant executed the Sale Deed in favour of the Defendants 3 & 4. The Suit property was originally purchased by mother of the First Defendant and her brother and subsequently in the Oral Partition between Rangammal, Gurusamy Chettiar and mother of the First Defendant, the Suit property allotted to the family of the First Defendant. The First Defendant was in possession and enjoyment of the property even during the life time of Nachammal. The said Nachammal was never in possession and enjoyment of the Suit property. On 29.6.1972, the First Defendant obtained Loan from the father of the Plaintiffs one Arumugam Chettiar by mortgaging the Suit property as his own property. The First Defendant has also constructed a building in the Suit property and obtained Patta and paid Kist payable to the Panchayat. Then, he settled the same in favour of his wife, the Second Defendant herein and in turn, the Second Defendant sold portion of the property to the Defendants 3 & 4. Hence, the Plaintiffs are not entitled to Partition. Thus, the Defendants 1 & 2 prays for dismissal of the Suit.
4. The Defendants 3 & 4 filed separate Written Statement and stated that they purchased the portion of the Suit property for valuable consideration in good faith that the property belongs to 1 & 2 Defendants. The Defendants 1 & 2 are having properties other than the property sold to them. Hence, if the Court comes to the conclusion that the Plaintiffs have got right of partition, the properties purchased by them have to be allotted in the share of the Defendants 1 & 2. Thus, the 3rd & 4th Defendants sought for dismissal of the Suit.
5. After contest, the Trial Court dismissed the Suit. Aggrieved upon that the Plaintiffs preferred the First Appeal before the Lower Appellate Court and after contest, the Lower Appellate Court by allowing the Appeal set aside the Decree and Judgment of the Trial Court and Decreed the Suit as prayed for. Aggrieved upon that, the Defendants 1 & 2 preferred this Second Appeal.
6. At the time of admission, the following Substantial Question of Law are raised by this Court in the Second Appeal for consideration:
(1) Whether the Lower Appellate Court is right in rever
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