Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 1846

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SAKTHIVEL, J.
C. Mani - Appellant
Versus
C. Rajan and Ors. – Respondents
S.A. No.101 Of 2021 And C.M.P. No.2153 Of 2021
Decided On : 28-10-2024

Advocates Appeared:
For the Appellant : Mr. S. Mukunth, Senior Counsel for Ms. T.R. Gayathri, M/s. Sarvabhauman Associates
For the Respondents: Mr. S. Saravanakumar.

Co-ownership implies that possession by one co-owner is possession for all, and oral relinquishment must be proven to be valid.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Partition Suit - The plaintiff sought partition of property co-owned with defendants, claiming constructive possession. The Trial Court dismissed the suit, citing lack of possession and limitation under Article 64 of the Limitation Act, 1963. The First Appellate Court reversed this, affirming co-ownership based on joint revenue records. (Paras 7, 8, 16, 19)

(B) Limitation Act, 1963 - Article 64 - The First Appellate Court held that the suit was not barred by limitation, as the plaintiff maintained constructive possession despite residing elsewhere. (Paras 8, 16)

Facts of the case:
The plaintiff and defendants are brothers co-owning property. The plaintiff claimed partition after the defendants evaded amicable resolution. The defendants contended the plaintiff relinquished his rights in a family arrangement. (Paras 3, 4)

Findings of Court:
The First Appellate Court found the plaintiff and defendants co-owners, dismissing the 1st defendant's claims of exclusive possession and relinquishment. (Paras 8, 19)

Issues: Whether the suit property is a Natham Poramboke and if the suit is barred by limitation. (Paras 10, 18)

Ratio Decidendi: The court ruled that oral relinquishment must be proven and that possession by one co-owner is deemed possession by all. The suit can proceed even if the property is government land if the family has been in possession. (Paras 14, 18)

Result: Second Appeal dismissed, confirming the First Appellate Court's decree. (Para 20)

JUDGMENT :

(R. Sakthivel, J.)

(PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated January 29, 2020 made in A.S.No.69 of 2018 on the file of the I Additional District Court at Coimbatore reversing the Judgment and decree dated August 3, 2017 made in O.S.No.476 of 2014 on the file of I Additional Subordinate Court, Coimbatore.)

This Second Appeal is directed against the Judgment and Decree dated January 29, 2020 passed in A.S.No.69 of 2018 by the 'learned First Additional District Judge, Coimbatore' [henceforth 'First Appellate Court' for the sake of brevity and convenience] reversing the Judgment and Decree dated August 03, 2017 passed in O.S.No.476 of 2014 by the 'learned First Additional Subordinate Judge, Coimbatore' [henceforth 'Trial Court'].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

Case of the Plaintiff

3. An extent of 460 Sq.Mtr. In S.F.No.1391/3 at Veeriampalayam, Kalapatti Village, Coimbatore District along with the tiled house therein constitutes the Suit property and the same belonged to the plaintiff, 1st defendant and one Srinivasan who are all brothers. The said Srinivasan died intestate on August 24, 2013 leaving behind the defendants 2 and 3 as his only legal heirs. The wife of the said Srinivasan, who is the mother of the 2nd and 3rd defendants also died. The revenue records pertaining to the suit property jointly stands in the names of the plaintiff, 1st defendant and Srinivasan. The plaintiff and the defendants are in joint and constructive possession of the suit property for more than 20 years as co-owners and co-sharers. The plaintiff and the 1st defendant each are entitled to 1/3rd share while the defendants 2 and 3 are jointly entitled to 1/3rd share in the suit property. When the plaintiff demanded for amicable partition of the suit property, the defendants evaded the same. Hence, the plaintiff caused legal notice dated May 2, 2013 against the defendants. In response, the defendants replied with false averments. Therefore, the plaintiff filed the suit for partition seeking division of the suit property into 3 equal shares and allotment of one such share to him.

Case of the Defendants

4. The defendant 2 and 3 did not contest the suit and they were set ex-parte before the trial Court. The 1st defendant alone filed written statement.

5. The suit property is a tiled building situated in Natham Poramboke and the defendant alone is residing in the suit property for more than past four decades. The plaintiff was never in joint and constructive possession of the suit property and is not a co-owner and co-sharer of the suit property. Further, the plaintiff's marriage took place in the year 1972 and the family had to borrow a sum of Rs.6,000/- for the marriage expenses. Since the plaintiff was unable to repay the loan amount, the family property viz., land measuring 2.00 acres situated at Nehru Nagar, Kalapatti was sold in the year 1973 and the sale consideration was utilized to discharge the loan of the plaintiff. Further, at that time, a family arrangement took place in the presence of their mother, where the plaintiff agreed that he will not claim any share in the suit property and also the 1st defendant paid a sum of Rs.10,000/- to the said Srinivasan to relinquish his right in the suit property. Ever since 1973, the 1st defendant alone has been in possession and enjoyment of the suit property by paying the property tax and electricity charges. Further, the suit is also barred by limitation, as the plaintiff has not resided in the Suit property since 1973. Hence, the suit is liable to be dismissed with cost.

Trial Court

6. At trial, the plaintiff was examined as P.W.1 and Ex-A.1 to Ex-A.9 documents were marked on the side of the plaintiff. On the side of the defendants, the 1st defendant was examined as D.W.1 and Ex-B.1 to Ex-B.3 were marked.

7. After completi