THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2024 CORAM:

THE HONOURABLE MR JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MR JUSTICE R.SAKTHIVEL A.S.No.332 of 2018 and C.M.P.Nos.8375 & 8376 of 2018

1.G.Poongavanam

2.G.Ramanujam (Died)

3.G.Madhavan

4.R.Jayavani [The 4^th appellant is brought on record as the legal representative of the deceased 2^nd appellant vide order of the Court dated

01.07.2024 made in CMP.No.12128/2024]

...Appellants Vs.

G.Adimulam ...Respondent Prayer : Appeal filed under Section 96 of the Code of Civil Procedure read with Order XLI(1) and (2) of the Code of Civil Procedure, to set aside the judgment and decree dated 21.02.2018 made in O.S.No.139 of 2011 on the file of the Additional District Judge, Chingelput consequentially allow this appeal.

For Appellants : Mr.T.S.Vijaya Raghavan For Respondent : Mrs.Hema Sampath, Senior Counsel for Mr.S.Mohanasundararajan *******

J U D G M E N T

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

The appellants are aggrieved by the decree for partition granted in O.S.No.139 of 2011.

2. The plaintiff sought for partition and separate possession of his 1/4^th share in the property contending that though the property was purchased in the name of the 1^st defendant, who was the eldest brother of the parties, on 19.05.1980 the funds were contributed by all the four brothers and an understanding was reached between them on 23.05.1980 regarding the enjoyment of the property, which was evidenced by a Koor-Chit. As per the said document, the parties have divided the property into four plots with a 20 ft. passage in the middle. While the North-Western portion was allotted to the plaintiff the 3^rd defendant was allotted North-Eastern portion. Access to them was provided through 20 ft. passage from Vembuli Amman Koil Street on the South. The passage measured 20 ft. East-West x 90 ft. North-South, equivalent to 6.1 m. East-West x 29.5 m. North-South. Claiming that this understanding is sought to be flouted the plaintiff sued for partition of his

1/4^th share with a right of access through the common passage.

3. The suit was resisted by the defendants contending that the arrangement dated 23.05.1980 itself evidences a partition between the parties and pursuant to the same, revenue records have also been mutated and patta has been granted to the lane portion in the name of all the four brothers. It was the further contention that in view of the above no decree for partition is necessary.

4. On the above pleadings the learned trial Judge framed the following issues:-

1/ jhthtpw;fhd vGK:yk; ,y;iy vd gpujpthjpfs;

TWtJ rhpahdjh?

2/ gpujpthjpfs; TWtJ nghy; 23/5/1980 njjpapl;l FLk;g Vw;ghL cz;ikahdjh?

3/ thjp. gpujpthjpfs; bgahpy; vGjpf;bfhLj;j 17/9/1981 njjpapl;ljhdg;gj;jpuk; cz;ikahdjh?

4/ thjp nfhhpago jhth brhj;jpid 3 rhp ghf';fshf gphpj;J mjpy; xU ghfk; thjpf;F tH';fplf; nfhhpa[k; mjDld; thjpf;Fk;. 3k; gpujpthjpf;Fk; kl;Lk; ghij mikj;Jk; me;j ghijapy; thjpf;F 50# chpik fpilf;fj;jf;f tifapy; gphpf;ff; nfhhpa Kjy; epiy jPh;g;ghiz bgwj; jFjpgilj;jtuh?

5/ ntW vd;d ghpfhu';fs;?

The issues were re-cast as follows:-

1/ thjp nfhhpago jhth brhj;jpid 4 rhp ghf';fshf gphpj;J mjpy; xU ghfk; thjpf;F tH';fplf; nfhhpa[k; mjDld; thjpf;Fk;. 3k; gpujpthjpf;Fk; kl;Lk; ghij mikj;Jk; me;j ghijapy; thjpf;F 50# chpik fpilf;fj;jf;f tifpay; gphpf;ff; nfhhpa Kjy; epiy jPh;g;ghiz bgwj; jFjpgilj;jtuh?

2/ ntW vd;d ghpfhu';fs;?

FLk;g

5. The learned trial Judge found that the document styled as '

ghfg;gphptpid mf;hpbkz;L ' dated 23.05.1980 was not acted upon and therefore the property remains undivided. On the said conclusion, the learned trial Judge granted a decree for partition. He also issued a further direction that the North-West portion over which the plaintiff has made a construction should be allotted to him in the final decree proceedings. The learned trial Judge however went on to observe that the common lane measuring 20 f. x 90 f. reserved as passage exclusively belongs to the plaintiff and the 3^rd defendant who were allo