S.A. No. 682 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.04.2023

CORAM

THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI

S.A. No.682 of 2017

1. A.Varadappa Gounder,

S/o Appavu Gounder

2. Anand @ P.Vivekanandan,

S/o. Palanivelu

... Appellants

Versus

1. V.Palaniappan,

S/o. Velappa Gounder

2. V.Parvathi,

W/o. Velappa Gounder

... Respondents

Prayer:- Second Appeal filed under Section 100 C.P.C., against the

judgment and decree of the learned 4^th Addl. District Judge, Erode District

at Bhavani in A.S.No. 17 of 2014 dated 19.11.2015 reversing the judgment

and decree of the learned Subordinate Judge, Bhavani in O.S.No.19 of 2001

dated 11.10.2013.

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S.A. No. 682 of 2017

For Appellants

: Mr.T.Murugamanickam,

Senior Advocate for

Mr.S.Kaithamalai Kumaran

For Respondents

: Mr.AR.L.Sundaresan,

Senior Advocate for

Mr.I.C.Vasudevan for R1

JUDGEMENT

The 1^st appellant herein is the plaintiff in the suit in O.S.No.19 of

2001 on the file of Sub-Court, Bhavani. He filed a suit for partition claiming

12 equal share in the suit property against the defendants. The 1^st defendant

filed a written statement and thereafter he died and his legal heirs were

impleaded as parties in the suit. Subsequently, they have filed their written

statement. Before the trial court, issues were framed and evidences were

adduced on both sides. Considering both oral and documentary evidence,

the trial judge decreed the suit in favour of plaintiff allotting 6/12 share by

way of preliminary decree. Challenging the said findings, the defendants 1

to 5 preferred an appeal in A.S.No.17 of 2014 on th file of learned IV Addl.

District Judge, Bhavani, wherein the first appellate judge independently

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S.A. No. 682 of 2017

analysed the facts and evidence and finally held that already the properties

were enjoyed by the plaintiff and the defendants by metes and bounds as per

the oral partition arrived between them. Accordingly, the suit was dismissed

as there is no necessity for dividing the property. Challenging the said

findings, the 1^st plaintiff preferred this Second Appeal.

2. For the sake of convenience, the parties are referred as per the

ranking in the suit.

3. The learned counsel for appellants argued that the first appellate

court failed to appreciate the fact that the plaintiff purchased an undivided

land to an extent of 4.36 acres in three survey numbers and the deceased 1^st

defendant purchased undivided 1/3 share and the parties are in possession of

the portion for their convenient enjoyment, but there was no partition with

metes and bounds, as such, is unfair and liable to be set aside. Further, the

first appellate court wrongly observed that since because the parties are

enjoying the separate possession for a long period, there might have been

oral partition between themselves, as such, is totally unsustainable, because

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S.A. No. 682 of 2017

such presumption should not be drawn with regard to the claim of oral

partition. Hence, he prayed to set aside the findings of the lower appellate

court.

4. Challenging the findings of the lower appellate court, the plaintiff

preferred this Second Appeal and the same was admitted on the following

questions of law :-

a)

When both the parties plead that they have purchased

undivided share and were enjoying specific portions for

convenient enjoyment, is the lower appellate court justified in

holding that there should have been an oral partition among

them without any basis and whether the said findings is legally

sustainable?

b)

Whether the findings of the lower appellate court are

justified in law when the same are not based on evidence on

record?

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S.A. No. 682 of 2017

5. Brief facts of the case :-

According to the plaintiff, he purchased 6/12 share in the sui