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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUBRAMANIAN, J.
Chenniappan - Appellant
Versus
Valliammal – Respondent
S.A.No.54 of 2014 and M.P.No.1 of 2014
Decided on : 19-09-2019
Civil Procedure Code, 1908 – Section 100 – Limitation Act – Article 110 – Second Appeal filed, to set aside the judgment and decree made in A.S. on the file of learned Principal District and Sessions Judge, Erode, partly allowing the judgment and decree on the file of the learned Principal Subordinate Court, Erode – 1st defendant in O.S. is the appellant herein – Suit in O.S was filed by the plaintiffs therein seeking partition and separate possession of their 1/8th share in the suit properties – According to the plaintiffs, the suit properties are ancestral properties of their father M.Rangasamy, who died leaving behind his wife Kuppayammal, the plaintiffs, the 2nd defendant daughter and the 1st defendant son –Held, Unfortunately, the attention of the learned trial Judge was not drawn to the earlier judgments of this Court, which deal with ouster. As regards ouster, however long the possession may be, the same will not confer absolute right on the co-sharer in possession. Strong evidence is required to show the exclusion – Court therefore unable to persuade myself to agree with the conclusions of the learned Judge in Venkataramana and others Vs.No.Munuswamy Naidu and others Supra as they run counter three Division Bench Judgments referred to above –Therefore, the question of law No. 1 is answered to the effect that Article 110 of the Limitation Act cannot be made applicable on the facts of the present case – As already pointed out, that the most essential requirement of ouster is that the exclusion should be proved by strong evidence – There is no evidence to show that the appellant/1st defendant was in possession of the properties to the exclusion of the sisters – Second appeal is dismissed.
JUDGMENT :
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree dated 16.08.2013 made in A.S.No.117 of 2009 on the file of learned Principal District and Sessions Judge, Erode, partly allowing the judgment and decree dated 08.12.2008 made in O.S.No.175 of 2004 on the file of the learned Principal Subordinate Court, Erode.
The 1st defendant in O.S.No.175 of 2004 is the appellant herein. The suit in O.S.No.175 of 2004 was filed by the plaintiffs therein seeking partition and separate possession of their 1/8th share in the suit properties.
2. According to the plaintiffs, the suit properties are ancestral properties of their father M.Rangasamy, who died on 03.04.1969, leaving behind his wife Kuppayammal, the plaintiffs, the 2nd defendant daughter and the 1st defendant son. The mother Kuppayammal died on 20.04.1993. Therefore, according to the plaintiffs, they would be entitled to 1/8th share each in the suit properties.
3. The suit was resisted by the 1st defendant contending that the deceased Kuppayammal had bequeathed her share in the properties to him and therefore the plaintiffs cannot claim a share as legal heirs of Kuppayammal. As regards the claim of the plaintiffs' partition of the estate of Rangasamy, the defendants would contend that the suit is actually barred by limitation. He would also contend that the right from the date of death of Rangasamy, that is, 03.04.1969, the 1st defendant alone has been in exclusive possession of the properties to the knowledge of the plaintiffs. The plaintiffs who are aware of the fact that the 1st defendant had exercised his right over the properties as the heir of Rangasamy, have slept over their rights for a period of 12 years and therefore, they are not entitled to partition.
4. At trial, the 1st plaintiff was examined as P.W.1 and one Palanisamy was examined as P.W.2. Exs.A1 to A6 were filed. The 1st defendant was examined as D.W.1 and he also examined Palanisamy and Subramaniam as D.Ws.2 and 3. Exs.B1 to B27 were marked on the side of the defendants.
5. The learned trial Judge upon consideration of the evidence on record, concluded that the plaintiffs were ousted from the enjoyment of the properties for a considerable period of time from 1969 to 2003. Therefore, they cannot seek partition. The trial Court also held that the plaintiffs who have been excluded from enjoyment of the properties to their knowledge, are barred from seeking a relief of partition in view of Article 110 of the Limitation Act. The learned trial Judge also found that the Will dated 06.06.1991 relied upon by the defendants, which is marked as Ex.B14, has been proved in accordance with law and dismissed the suit. Aggrieved, the plaintiffs filed an appeal in A.S.No.117 of 2009.
6. The lower appellate Court, upon re-consideration of the evidence on record, concluded that there is no scope application of Article 110 of Limitation Act to the case on hand. The lower appellate Court found that mere fact that improvements were made by the 1st defendant in some of the suit properties, after the death of his father would not amount to Ouster. The lower appellate Court also found that the plea of the ouster raised by the 1st defendant was not available to him. In view of the said findings, the learned Principal District Judge allowed the appeal and granted 1/10th share in the suit properties. The lower appellate Court confirmed the finding of the trial Court regarding the validity of Ex.B14 Will. The lower appellate Court further observed that the properties in which improvements were made by the 1st defendant, can be allotted to him at the time of final decree proceedings.
7. Aggrieved, the 1st defendant has come with this appeal.
8. The following substantial questions of law were framed at the time of admission for determination in this appeal.
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