Registered partition deed between brothers under Mohammedan law creates valid title; High Court cannot re-appreciate facts absent substantial question of law in second appeal.

JUDGMENT :

K.MURALI SHANKAR, J.

1.These two Second Appeals are directed against the judgment and decree made in A.S.No.147 of 2012 dated 23.01.2018 on the file of the Principal Subordinate Court, Tirunelveli, reversing the judgment and decree passed in O.S.No.1264 of 1987 dated 29.06.2012 on the file of the I Additional District Munsif Court, Tirunelveli.

2. The appellants in S.A.(MD)No.310 of 2018 are the defendants 1 and 2 and the appellant in S.A.(MD)No.167 of 2020 is the fourth defendant. The deceased first respondent in both the appeals as plaintiff filed the suit in O.S.No.1264 of 1987 before the District Munsif Court, Tirunelveli, claiming the relief of declaration that he is the absolute owner of the suit property and for consequential permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

3. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court.

4. The case of the plaintiff, in brief, is as follows:

(a) One Esakki Velar, son of Nainar Velar, purchased the suit property in a Court auction sale conducted in E.P.No.1016 of 1937 in O.S.No.168 of 1936 on the file of the District Munsif Court, Tirunelveli. Pursuant to the sale certificate issued therein, the said Esakki Velar obtained delivery of the property in E.A.No.1372 of 1938 and, by virtue of the delivery attakshi, became the absolute owner of the suit property. Thereafter, he sold the suit property to the plaintiff’s brother, Udhuman Abdul Kader, under a sale deed dated 31.08.1942. Subsequently, in the partition effected among the members of the family of the said Udhuman Abdul Kader under a registered partition deed dated 20.04.1948, the suit property was allotted to the share of the plaintiff. Since then, the plaintiff has been in possession and enjoyment of the suit property as its absolute owner.

(b) Originally, there existed a house in the suit property bearing Door No.43, which was subsequently renumbered as Door Nos.43-A and 43-B and thereafter as Door Nos.2 and 3. The plaintiff had been paying municipal taxes in respect of the said property. Subsequently, the entire building became dilapidated and collapsed into ruins, and thereafter the plaintiff has been enjoying the suit property as a vacant site. While so, the defendants, who have absolutely no manner of right, title or possession over the suit property, attempted to interfere with the plaintiff’s peaceful possession and enjoyment thereof. The defendants 1 and 2 fraudulently attempted to have their names entered in the Municipal Registry of Melapalayam Municipality. The plaintiff, therefore, submitted an application before the Municipal Commissioner, Melapalayam, and after due enquiry, the said entry was rectified. On 19.09.1987, when the plaintiff was present in the suit property, the defendants came there and threatened that they would forcibly trespass into the suit property and prevent the plaintiff from enjoying the same. The third defendant is also setting up a claim of title over the suit property. Hence, the plaintiff was constrained to file the present suit seeking declaration of title to the suit property and consequential permanent injunction.

5. The defendants 1 and 2 and the third defendant filed separate written statements, a