Possession by one co-owner is deemed joint possession of all; ouster requires proof of exclusive and hostile possession to the knowledge of other co-owners, and a registered settlement deed prevails over revenue records like patta.

Prayer: Appeal suit filed under Section 96 CPC., to set aside the judgment and decree dated 29.10.2018 passed in O.S.No.71 of 2017 on the file of the Additional District Judge(FTC), Theni and allow the appeal suit.

J U D G M E N T

(By G.R.SWAMINATHAN, J.)

The defendant in O.S.No.71 of 2017 on the file of the Additional District Judge (FTC), Theni is the appellant. This first appeal arises out of a suit for partition.

The plaintiff Lakshmi and the defendant Thangamuthu are the children of one Ramasamy Thevar. While the appellant is the son born through the first wife, the plaintiff was the daughter born through the second wife. It is seen that Ramasamy Thevar executed settlement deed dated 13.09.1947(Ex.A.1) in favour of his second wife Palaniammal. In fact, this settlement preceded the marriage between Ramasamy Thevar and Palaniammal. As per the terms of the settlement deed, Palaniammal was to enjoy the property during her life time and thereafter, the property was to be taken in equal shares by Thangamuthu and the legal heir born through the second wife. Ramasamy Thevar died on 11.11.1961. Palaniammal died in the year 27.02.2010. Thangamuthu had settled the suit property in favour of his wife. Hence, the plaintiff filed the suit seeking ½ share in the suit property and for declaring that the settlement deed dated 22.06.1999 is null and void and for permanent injunction.

The case of the plaintiff was controverted by the appellant by filing a detailed written statement. The appellant claimed that the property belonged to his mother-in-law Muthuammal. He further claimed that Muthuammal had settled the property in favour of his daughter and son-in-law (the appellant herein). He further claimed that during her lifetime, Palaniammal did not choose to seek any relief. He further added that the property had all along been in the exclusive possession of the appellant. He also pleaded ouster. Based on the rival pleadings, the trial Court framed the following issues:-

“i)Whether the plaintiff is entitled to ½ share in the suit mentioned properties?

ii)Whether the settlement deed dated 22.06.1999 is a valid document?

iii)Whether the plaintiff is entitled to preliminary decree for partition of ½ share as prayed for?

iv)Whether the plaintiff is entitled to the relief of declaration as prayed for?

v)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

vi)To what other relief and cost, the plaintiff is entitled to?”

The plaintiff examined herself as P.W.1 and two other witnesses on her side. Ex.A.1 to Ex.A.20 were marked. The defendant was examined as D.W.1 and one Sekar was examined as D.W.2. Ex.B.1 to Ex.B.6 were marked. After considering the evidence on record, the trial Court by judgment and decree dated 29.10.2018 decreed the suit as prayed for. Assailing the same, this first appeal has been filed.

During the pendency of the appeal, Thangamuthu passed away. The legal heirs have been brought on record. Likewise, Lakshmi had also passed away and her legal heirs have been brought on record.

The learned counsel appearing for the appellants reiterated all the contentions set out in the grounds of appeal and contended that the judgment and decree passed by the trial Court has to be set aside and prayed for dismissal of the suit.

Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree is well reasoned and it does not call for interference.

The points that arise for determination are as follows:-

a) Whether the plaintiff is entitled to half share in the suit property?

b) Whether the settlement deed dated 22.06.1999 can be upheld?

The patta in respect of the suit property appears to have been in the name of Muthu Ammal, the mother in law of the defendant. But patta cannot be projected as a document of title and in any event, it cannot prevail over a registered document. It is not in disput