Sri. M Arunachalam Vs Sri. R M Chockalingam

SRI.M.ARUNACHALAM S/O SMT.M.LALITHA AND SRI.R.M.MUTHAPPAN AGED ABOUT 53 YEARS R/O BAJIE COLLIE KAMATHENU ESTATE, P.BOX NO.2 POLLIBETTA – 571 215 AMMATHI NAD VIRAJPET TALUK KODAGU DISTRICT … APPELLANT (BY SMT.KALPANA P.V., ADV.)

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AND:

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SRI.R.M.CHOCKALINGAM Digitally signed by S/O LATE A.R.RAMASWAMY SREEDHARAN AGED ABOUT 62 YEARS BANGALORE SUSHMA LAKSHMI R/O BAJJIE COLLIE SARAVANA Location: High Court of ESTATE, MEKOOR – HOSKERI VILLAGE Karnataka POLLIBETTA POST, AMMATHI NAD VIRAJPET TALUK, KODAGU DISTRICT – 571 215

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SMT.N.SEETHALAKSHMI W/O SRI.R.M.VINAYATHEERTHAN AGED ABOUT 74 YEARS R/O OLD NO.15/2, KAILASH NAGAR 3^RD STREET, POLICE COLONY SOUTH KARAIKUDI 630 001 SIVANANGA DIST.TAMILNADU

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SMT.V.VALLAIMMAI W/O SRI.R.M.VISWANATHAN AGED ABOUT 64 YEARS R/O 4-G-SUNFLOWER BLOCK CEEBOS GARDEN, ARCOT ROAD VIRUGAMPAKAM, CHENNAI – 600 092 TAMILNADU

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SRI.V.RAMASWAMY S/O SRI.R.M.VINAYATHEERTHAN AGED ABOUT 48 YEARS R/O D-003, GROUND FLOOR SJR SPENCERS, VARTNOOR MAIN ROAD MARTHAHALLI BANGALORE -37

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SMT.C.SEETHA DEVI W/O SRI.R.M.CHOKKALINGAM AGED ABOUT 62 YEARS R/O W-442, 2^ND STREET

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ANNANAGAR WEST CHENNAI 600 101

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TAMILNADU

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SRI.M.RAMASWAMY S/O SRI.R.M.MUTHAPPAN AGED ABOUT 54 YEARS R/O SHREE SAI RAM COLOUR LAB MURUGA BHAVAN COURT ROAD TANJORE TAMILNADU

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SRI.R.M.VINAYATHEERTHAN S/O LATE SRI.A.R.RAMASWAMY AGED ABOUT 75 YEARS

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R/O OLD NO.15/2, KAILASHNAGAR 3^RD STREET, POLICE COLONY SOUTH KARAIKUDI 630 001 SIVAGANGA DIST. TAMILNADU

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SRI.C.RAMASWAMY S/O SRI.R.M.CHOKKALINGAM AGED ABOUT 38 YEARS

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R/O W-442, 2^ND STREET ANNANAGAR WEST CHENNAI – 600 101 TAMILNADU

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SRI.V.RAMASWAMY S/O SRI.R.M.VISWANATHAN AGED ABOUT 48 YEARS R/O 4-G SUNFLOWER BLOCK CEEBROS GARDEN, ARCOT ROAD VIRUGAMPAKAM, CHENNAI – 600 092 TAMILNADU

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SRI.V.MUTHUKARUPPAN S/O SRI.R.M.VISWANATHAN AGED ABOUT 47 YEARS R/O 4-G-SUNFLOWER BLOCK CEEBROS GARDEN, ARCOT ROAD VIRUGAMPAKAM, CHENNAI – 600 092 TAMILNADU.

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DEFENDANT NO.1 AND 6 HAVE EXPIRED AND HENCE THEY ARE NOT PARTY TO THE APPEAL AND THAT THE APPELLANT AND DEFENDANT NO.8 ARE THE LEGAL HEIRS …RESPONDENTS

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(BY SRI.N.JAGADISH BALIGA, ADV. A/W SRI.K.CHANDRAMOHAN, ADV. FOR R1; SRI.B.N.PRAKASH, ADV. AND SRI.RAKSHIT, ADV. FOR SHRESTY ADVS. FOR R3 & R7 A/W GPA HOLDER TO R9; R6 AND R8 ARE SERVED AND UNREPRESENTED; R2 SERVICE HELD SUFFICIENT VIDE ORDER DATED 8.04.2021; R4 AND R10 VK NOT FILED)

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THIS RFA IS FILED UNDER SECTION 96 AND UNDER ORDER 41 RULE 1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 20.02.2020 PASSED IN OS NO.79/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,

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VIRAJPET PARTLY DECREEING THE SUIT FOR DECLARATION AND POSSESSION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 09.07.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S RACHAIAH

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This appeal has arisen from the judgment and decree dated 20.02.2020 passed in O.S.No.79/2010 on the file of the Senior Civil Judge, Virajpet, wherein the Trial Court decreed the suit partly.

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The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience.

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FACTUAL MATRIX OF THE CASE:

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The case of the plaintiff is that the original partnership firm was constituted by four persons, namely Smt. M. Lalitha, Smt. N. Seethalakshmi, Smt. V. Valliammai

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and the plaintiff. The name of the firm is M/s. Bajie Collie Saravana Estate, under the registered partnership deed dated 10.05.1979.

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It is further stated that, the parties have entered into a registered deed of partition dated 18.01.1995 on consensus. As per the terms of the said registered partition deed, the properties were divided amongst themselves. The plaintiff was allotted the division namely M/s. Bajie Collie Saravana Estate, Uma Division. The partition was made in a bit of hurry and therefore, the exact physical possession and proper demarcation of shares allotted to each or fixing its boundaries on land by proper fencing could not be done immediately.

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In the meantime, one of the properties located at Hosakeri village, Madikeri taluk, Kodagu district namely M/s. Muthumari Division was kept for sale jointly. The said property was sold on 14.02.2007. The second defendant who is the son of the first defendant, after taking over the management of the estate, was trying

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to dominate on all properties by ignoring the registered partition deed dated 18.01.1995. The second defendant, in fact, encroached and occupied certain areas of coffee lands which belong to the plaintiff as shown in the plaint ‘D’ schedule.

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To avoid the confrontation, the plaintiff had requested and suggested for joint survey, however, the defendants have avoided and also did not agree for the finalization of boundaries. Therefore, the plaintiff filed the suit for declaration and its consequential reliefs.

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The defendants contested the suit by filing the written statements contending that, the suit schedule properties and among other properties comprising in an area of 114.16 acres of land at Mekoor-Hosakeri village, South Kodagu, previously known as ‘Bajie Coolie Estate’. The said Estate is presently known as ‘Bajie Collie Saravana Estate’. It is the part and parcel of an area containing 224.41 acres of land at Mekoor village, South Kodagu, originally belonged to Mr. M.P. Devis. The said M.P. Devis had sold the properties in

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favour of Smt. R.M. Kamala, Smt. M.Lalitha i.e., 1^st defendant, Smt. N. Seethalaxmi – 3^rd defendant and one Mr. R.M. Chockalingam in the year 1973. These four persons had purchased the said properties jointly on a partnership basis. Later on, Smt. R.M. Kamala and Sri. Chokkalingam separated from the joint cultivation and joint ownership by taking their 25% share each in the year 1976. The remaining area i.e., 114.16 acres of land was jointly owned and managed by Smt. M.Lalitha, Smt. N. Seethalaxmi. Later, Smt. M. Lalitha had gifted the property in favour of Sri R.M. Chokkalingam under the registered gift deed. Similarly, Smt. N. Seethalaxmi had gifted her undivided 50% of the properties in favour of Smt. V. Valliammai – 4^th defendant, through gift deed dated 10.05.1979.

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It is further contended that, there were no problems amongst the partners in the matter of ownership, enjoyment and possession of the Bajie Collie Saravana Estate properties. They had to submit Income-Tax

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returns for the agricultural income to the Income Tax Department. In order to simplify the tax patterns and return procedures, the partners had been advised by their Chartered Accountant - Auditor namely Sri A.R. Laxmanan, and they had entered into a formal partition deed. Accordingly, the property has been divided into four divisions on 18.01.1995.

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It is further contended that, the parties were not in good terms in respect of their respective properties. Therefore, the said Auditor convinced all the partners and prepared a document namely “Yathasthu” on 20.05.2005. The said Yathasthu had been given effect to by taking their respective shares.

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As per the Yathasthu document, all the partners had agreed to sell Bajie Collie Muthumari Division properties since they had found it difficult to manage the properties. Accordingly, the properties were sold under various sale deeds in the year 2007 and the sale proceeds had been apportioned amongst the partners. Therefore, the question of implementing the registered

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partition deed would not arise for the reason that, all the partners have sold some of the properties to the prospective purchasers jointly even after the execution of the alleged partition deed. As such, the defendants pray to dismiss the suit.

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW.1 and got marked 58 documents as Exhibits P1 to P58. On behalf of the defendants, D.Ws.1 to 4 have been examined and got marked 10 documents as Exhibits D1 to D10.

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The Trial Court after considering the averments of the plaint and written statements, opined that, the registered partition deed, which is marked as Ex.D5, prevails over the alleged Yathasthu Patra, which is marked as Ex.D7 and granted the relief of declaration and also permanent injunction in favour of the plaintiff, however, rejected the prayer of damages. Being aggrieved by the said judgment and decree, defendant No.2 has preferred this appeal.

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Heard Smt. Kalpana P.V., learned counsel for the appellant, Sri. N. Jagadish Baliga, learned counsel along with Sri. K. Chandramohan, learned counsel for respondent No.1, Sri. B.N. Prakash, learned counsel and Sri. Rakshit R. Shresty, learned counsel for respondent Nos.3 and 7 a/w GPA holder to respondent No.9.

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Submissions of the learned counsel for the appellant:

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Learned counsel for the appellant submitted that the Trial Court committed an error in passing the decree by ignoring the relevant documents namely Yathasthu patra, which is erroneous and not proper. Therefore, the decree has to be set aside.

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The registered partition deed dated 18.01.1995 was made only for the purpose of paying the agricultural tax in respect of individual partners. Mere changing of the records in respect of the properties between the sharers does not conferred the rights over the properties unless it is demarcated as per the

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settlement arrived between the parties. If really the partition deed was prepared to have shares among the sharers, the sketch relating to demarcation ought to have been produced along with the partition deed. The prayer of the plaintiff itself would indicate that the document of which relied on in respect of partition is a sham document and the said document is not binding on all the parties.

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It is further submitted that, in fact, the partners have sold the property namely M/s. Bajie Collie Muthumari Division on 14.02.2007, even after the execution of the alleged registered partition deed, would indicate that the properties were still not divided among the partners/sharers. The evidence of D.W.2 categorically held that, he being an Auditor, has not only scribed the said partition deed, but also, prepared Yathasthu Patra. As per the said Patra, the RTCs., and other documents in respect of the shares of the sharers were changed. Therefore, the decree passed by the Trial Court, based on the partition deed, has to be set aside. Making such

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submissions, learned counsel for the appellant prays to allow the appeal.

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Submissions of learned counsel for the respondent No.1:

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Respondent No.1 is the plaintiff before the Trial Court. He relied on Ex.P8, which is a registered partition deed. As per the said partition deed, the property mentioned in the schedule ‘D’ was allotted to the plaintiff. Records have been changed in respect of the properties allotted to the plaintiff. He has been in possession of the property from the date the partition. Pursuant to the said partition deed, the respective scheduled properties were allotted between the partners. In fact, the defendant No.2, in one or the other way, was trying to dominate the plaintiff and trying to occupy the property illegally by encroaching on it.

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It is further submitted that, when the defendant No.2 disputes the partnership deed dated 18.01.1995 that it is a document which was made for the purpose of paying tax and it is a sham document, he has to lead

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his evidence to establish that it was made only for the purpose of arrangement of paying the agricultural tax. Though D.W.2 stated to be the person who drafted the said Ex.P8 and Ex.D1, the said Ex.D1 is an unregistered document. Therefore, the document which is registered, has to prevail over the unregistered document. As such, the defendant failed to make out a case before the Trial Court.

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It is further submitted that the Trial Court has rightly appreciated both oral and documentary evidence on record. Therefore, the decree has been passed which is proper and appropriate. At this juncture, it is not appropriate to interfere with the said findings. Hence, the appeal has to be dismissed. Making such submissions, learned counsel for the respondent No.1 prays to dismiss the appeal.

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Similarly, other respondents have adopted the arguments advanced by learned counsel for the respondent No.1 and pray to dismiss the appeal.

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Having heard learned counsel for the respective parties and also perused the findings of the Trial Court in passing the judgment and decree, the points which would arise for my consideration are:

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(i) Whether the plaintiff establishes that the partition was effected as per the partition deed dated 18.01.1995?

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(ii) Whether the alleged Yathasthu Patra was made by consensus between the parties?

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(iii) Whether the findings of the Trial Court in passing the judgment and decree are justified?

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(iv) What Order?

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ANALYSIS:

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Regarding Point No.(i)

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The plaintiff has got himself examined as P.W.1 and reiterated the averments of the plaint. He got marked 58 documents of which Exs.P1 to P7 are the documents relating to his share. All the documents are RTCs., and pahanies. On the other hand, the defendant No.2 examined himself as D.W.1, got examined D.Ws.2, 3 and 4 and got marked Ex.D1 – sale deed, Ex.D2 – deed

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of partition and other relevant documents including Ex.D7 – Yathasthu Patra.

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There is no dispute that Ex.P8 is the registered partition deed. The recitals of said deed would indicate that, the properties have been divided amongst the partners including the plaintiff. The said partition deed has been considered in this case as a secondary evidence as its original had not been produced before the Trial Court. The said document was confronted to P.W.1 and it has been admitted through him only in respect of signature found on the said document. However, he denied the recitals on the said document.

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No doubt, there are several documents namely RTCs., and other relevant documents relating to the properties of the plaintiff were got changed by the competent authority. In fact, P.W.1 admitted that he has been in possession of the property of his share by virtue of partition deed dated 18.01.1995. Having considered the said admission, it can be inferred that, the plaintiff has proved that the partition was effected and the

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shares of the partners have been allotted as per the said partition deed. Even though the defendants, by filing the written statements, denied the said partition deed, the fact remains that, all the partners have got the documents changed in respect of their respective shares. Therefore, I answer point No.(i) in the

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‘ affirmative’.

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Regarding Point No.(ii)

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D.W.1 in order to prove the Yathasthu Patra, which is marked Ex.D7, contended that the partition was effected in terms of the said Yathasthu Patra and it is binding on all the partners. However, the said document cannot be considered for the reason that it is an unregistered document. The records relating to the respective shares of the respective partners were effected by virtue of partition deed. In fact, the recitals of the sale deeds dated 14.02.2007 would indicate that the parties have got the title over their respective shares by virtue of partition deed dated 18.01.1995. If it is true that the Yathasthu Patra was registered much

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prior to 14.02.2007, in the said sale deeds stated supra, it should have been mentioned about the said Yathasthu Patra. In fact, the documents relating to the property allotted to the plaintiff were changed much earlier than the said Yathasthu Patra. Therefore, it can be inferred that the Yathasthu Patra, even though assumed that it was prepared by D.W.2, the same cannot be binding on the other partners. Hence, I answer the point No.(ii) is answered in the ‘ negative’.

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In view of discussions made above, it is relevant to answer point No.(iii) in the ‘ affirmative’ for the reasons that, the Trial Court while appreciating the documents namely partition deed and Yathasthu Patra, elaborately discussed and passed the order appropriately in respect of those documents. Even on the prayer of the plaintiff, the Trial Court has rightly dealt with all the issues and passed the judgment and decree partly allowing the suit. It is needless to say that, the plaintiff has not chosen to file cross-appeal for not having obtained other two reliefs. Therefore, I am of

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