A.S.No.80 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.11.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

A.S.No.80 of 2021

and

C.M.P.No.5476 of 2021

Tmt Selvi

… Appellant

Vs.

1.Mr.Murugan

2.Mr.Elango

. . . Respondents

Prayer:- Appeal is filed under Section 96 of C.P.C to set aside the

judgement and decree dated 16.12.2019 made in O.S.No.121 of 2017

on the file of the I Additional District and Sessions Judge, Salem.

For Appellant

: M/s.C.Sivanesan

For Respondent : Mr.N.Umapathi [R.1 and R.2]

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A.S.No.80 of 2021

JUDGEMENT

The unsuccessful plaintiff before the I Additional District Judge,

Salem in O.S.No.121 of 2017 is the appellant herein. The facts are

briefly set out herein below and for ease of understanding the parties

are referred to in the same ranking as before the Trial Court.

Plaintiff’s case:-

2. The plaintiff had filed the above-referred suit seeking a

partition and separate possession of her 1/3rd share in the suit

schedule property and for an injunction restraining the defendants

from in any manner interfering with her peaceful possession and

enjoyment of the suit property. The suit property is an extent of 89

cents of agricultural land within specified boundaries comprised in

Survey No.176/2, Jagir Aamapalayam Villagem, Salem.

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A.S.No.80 of 2021

3. The plaintiff would contend that the property in question

belonged to one Mari son of Vaiyapuri who is the father of the

plaintiff and the defendants. The suit property belongs to Mari as per

the patta passbook by reason of his continuous enjoyment and

possession of the land. The said Mari died intestate on 27.12.2011

and thereafter his wife had died intestate on 19.08.2015. Therefore,

the plaintiff and the defendants became entitled equally to the

property in question.

4. The plaintiff would submit that after the demise of Mari, they

were jointly enjoying the suit property without division. Thereafter,

misunderstanding in managing and enjoying the suit property arose

between the plaintiff and the defendants and despite several request

for partition, the defendants were not coming forward to amicably

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A.S.No.80 of 2021

settle the issue. Therefore, the plaintiff has come forward with the

above suit in question

Written statement:

5. The defendants had filed a written statement denying the case

of the plaintiff and pleading that the plaintiff was married and settled

away from the property and that she had never been in possession and

enjoyment of the same. Further, the defendants have perfected title to

the property by ouster. They, therefore, sought for the dismissal of the

suit.

Trial Court:-

6. The learned I Additional District Judge on the basis of the

pleadings on either side had framed the following issues which

translated from the vernacular would read as follows:-

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A.S.No.80 of 2021

i) Whether the plaintiff is entitled to a 1/3rd share in the

suit property?

ii) What other reliefs?

7. The plaintiff had examined herself as P.W.1 and one Raja as

P.W.2 and Srinivasan as P.W.3 and Ex.A.1 to Ex.A.10 were marked.

As regards the defendants, the 2nd defendant Illango had examined

himself as D.W.1 and one Janaki was examined as D.W.2 and Raman

as D.W.3 and Ex.B.1 and B.2 were marked.

8. The learned District Judge had observed that at no point in

time the plaintiff was in occupation and enjoyment of the suit property

and this property has been divided amongst the defendants even

during the life time of their father in the year 1998. Further, the father

had also purchased a property in the name of the plaintiff which is

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A.S.No.80 of 2021

evidenced by Ex.B.1 and B.2 and this would substantiate the

contention of the defendants that there was