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2022 Supreme(Mad) 1234
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
P. Jayanthi & Another - Appellant
Versus
C. Hemathiri & Another - Respondent
Second Appeal No. 103 of 2012 & M.P. No. 1 of 2012 & CMP Nos. 103 of 2012
Decided On : 09-03-2022
For the Petitioners:R. Manickavel, Advocate. For the Respondents:R1, S. Ramesh, Advocate.
The burden of proof lies with the plaintiff to establish ownership and partition claims in property disputes.
Headnote:
Oral Partition - Property Dispute - Code of Civil Procedure - Section 100 - Ex.A-8, Ex.B-2, Ex.B-5, Ex.B-10 - The court discussed the oral partition claim, the validity of the Settlement Deed (Ex.A-8), and the subsequent sale deeds (Ex.B-2, Ex.B-5) to establish ownership and possession of the suit property. The Lower Appellate Court found that the oral partition was not proved, and the Settlement Deed did not establish ownership, leading to the dismissal of the Second Appeal.
Fact of the Case:
The plaintiff claimed ownership of a suit property based on an alleged oral partition between G. Elumalai and Parthasarathy. The Trial Court granted the relief of permanent injunction, but the Appellate Court set aside the judgment, leading to the Second Appeal.
Finding of the Court:
The Lower Appellate Court found that the oral partition was not proved, and the Settlement Deed did not establish ownership. It also held that a suit for bare injunction is not maintainable without seeking a declaration of title to the suit property.
Issues: Validity of oral partition claim, ownership based on Settlement Deed, maintainability of suit for bare injunction.
Ratio Decidendi: The burden of proof was on the plaintiff to establish the oral partition and ownership, and the failure to do so led to the dismissal of the Second Appeal.
Final Decision: The Second Appeal was dismissed, and no substantial questions of law were found to be involved in the case.
JUDGMENT
(Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.29 of 2010 by the Principal Sub Judge, Chengalpet, dated 25.11.2011, setting aside the judgment and decree passed in O.S.No.297 of 2008 by the District Munsif, Chengalpet dated 31.08.2010.)
1. The plaintiff is the appellant in this Second Appeal.
2. The case of the plaintiff is that the suit property and another extent of 5 cents was owned by one G. Elumalai. Even though it stood in his name, the property was held by G.Elumalai for the welfare of the entire family. The said G.Elumalai had a younger brother named Parthasarathy. The further case of the plaintiff is that the said G.Elumalai, his wife and his children and the above said Parthsarathy orally divided the 10 cents of land and the suit property was allotted to the share of Parthasarathy.
3. It is stated that the western side of the property was enjoyed by Parthasarathy and the eastern side was enjoyed by G.Elumalai and his family. A joint patta was also issued in their names.
4. The further case of the plaintiff is that the said Parthsarathy executed a registered Settlement Deed in the name of the plaintiff on 19.02.2007 (marked as Ex.A-8). Upon execution of the said document, the plaintiff claims to be in possession and enjoyment of the property and the revenue records were also transferred in the name of the plaintiff.
5. The grievance of the plaintiff is that the defendants attempted to interfere with the peaceful possession and enjoyment of the suit property and hence, the suit came to be filed seeking for the relief of permanent injunction.
6. The 1st defendant filed a written statement. He has taken a stand to the effect that G.Elumalai was the absolute and exclusive owner of the entire property measuring 10 cents. He died in the year 1983 leaving behind his wife and children as his legal heirs. The further case of the 1st defendant is that they sold the entire 10 cents in favour of one Munusamy through a registered Sale Deed dated 07.09.2006 (Ex.B-2). On purchase of the property, the said Munusamy obtained a patta in his name for the entire 10 cents on 18.12.2006 (Ex.B-5). Thereafter, the said Munusamy sold the entire 10 cents in favour of the 1st defendant through a registered Sale Deed dated 01.03.2007. Thus, the 1st defendant is claiming to be the absolute owner of the entire extent of 10 cents of land in Survey No. 229/37. The 1st defendant also mutated his name in the revenue records and patta was issued in his favour, marked as Ex.B-10. The 1st defendant has therefore sought for the dismissal of the suit. The 2nd defendant has also filed a separate written statement and supported the case of the 1st defendant.
7. The Trial Court on appreciation of oral and documentary evidence and after considering the facts sand circumstances of the case, decreed the suit and granted the relief of permanent injunction. Aggrieved by the same, the 1st defendant filed an appeal before the Principal Sub-Court, Chengalpattu in A.S. No. 29 of 2010 and the appeal was allowed through a judgment and decree dated 25.11.2011. Thereby, the judgment and decree of the Trial Court was set aside. Aggrieved by the same, the plaintiff has filed this Second Appeal.
8. Heard Mr.R.Manickavel, learned counsel for the appellants and Mr.S.Ramesh, learned counsel for the 1st respondent.
9. When the case came up for hearing on 17.02.2022, the learned counsel for the appellant submitted that the defendant had conveyed the entire property in favour of one Chandrababu as early as on 19.06.2008 and in turn, the said Chandrababu sold the property in favour of one Dayalan through a Sale Deed dated 20.07.2011 and therefore, it was submitted that the 1st defendant does not even own the property and he was contesting the case as if, he was owning the entire 10 cents of property. A petition was also filed under Order XLI Rule 27 CPC., to file certain documents to establish that the p
