High Court dismissed two appeals against lower court judgment rejecting partition suit and preferred right to purchase claims. Court held property was not kept in common and respondent perfected title via long possession.
Both Appeal Suits dismissed with costs, confirming trial Court judgment dismissing suits for partition and preference right.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26.10.2017
CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
A.S.Nos.274 and 275 of 2011
Muthuraman (Died)
1. Ramadoss
2. Pavunambal
3. Rajendran
4. Susila
5. Chitra .. Appellants/plaintiffs
in both the Appeals
Vs.
Venugopal .. Respondent/Defendant
in both the Appeals
Appeal Suits filed under Section 96 r/w Order 41 Rule 1
and 2 of the Code of Civil Procedure, against the common
Judgment and Decree, dated 27.01.2011 made in O.S.No.28 of 2005
and O.S.No.1 of 2007 on the file of the learned Additional
District Judge (Fast Tract Judge No.2), Cuddalore.
For appellants : Mr.R.Gururaj in both the Appeals.
For respondent : Mr.A.K.Kumarasamy, Senior counsel
for Mr.Kaithamalai Kumaran
COMMON JUDGMENT
(Judgment of the Court was delivered by
P.KALAIYARASAN, J )
Challenging the common Judgment and Decree, dismissing both the suits in O.S.No.28 of 2005 and O.S.No.1 of 2007 (one for partition and another for declaring the plaintiffs to have preferential right to purchase the property of the defendant and for mandatory injunction) by the learned Additional District Judge (Fast Track Court No.2), Cuddalore, dated 27.01.2011.
are sons and daughter of Chinnavandu Naidu and Subbulakshmi. The suit schedule property is shown in the "B" schedule in O.S.No.28 of 2005. It is a joint family property. During the life time of Chinnavandu Naidu, the properties were divided among the father and sons orally. In the partition that took place 40 years back, the suit "B" schedule property was kept in common. The property was rented out by eldest brother Venkatasubbu in 1968 and then in 1978 by all legal heirs. To execute the rent deed, the defendant also executed a power deed in favour of Venkatasubbu. In the said property one Muniyammal, mother of Sellaperumal trespassed and in occupation of North-west 2 cents and therefore, the same was agreed to be sold to them and a sale deed was executed by the fourth plaintiff, son of the eldest brother Venkatasubbu in favour of Sellaperumal on 02.03.1987. In the said registered sale deed, the first plaintiff, third plaintiff and defendant also signed as witnesses. Since Venkatasubbu passed away before filing of the suit, his son representing the heirs of Venkatasubbu along with other plaintiffs filed the suit. The boundaries mentioned in the sale deed executed in favour of Sellaperumal was subsequently attempted to be corrected by the defendant. Just before the death of Venkatasubbu, he wanted a tentative arrangement to be made. As agreed by brothers, Northern-west 1/4th of the suit property was allotted to Venkatasubbu. Next southern 1/4th share to the first plaintiff, next souther 1/4th share to the second plaintiff and the last 1/4th share on the southern most side was allotted to the defendant. As there was no immediate necessity a final partition was not effected.
preferential right to purchase the defendant's undivided 6/25 shares in the "B" schedule property and the entire "C" schedule property and they also seek mandatory injunction directing the defendant to sell the defendant's share in the "B" schedule property and the entire "C" schedule property to the plaintiff at a rate fixed by the Court. They further say that the defendant is attempting to sell the properties and the plaintiffs are willing to purchase the defendant's share at a market rate.
possession also. The present suit has been filed at the instance of one Venkatachalam who is son-in-law of first plaintiff.
and sons. In 1975, Chinnavandu Naidu died and later his wife Subbulakshmi also passed away. Subsequently, their eldest son Venkatasubbu also died. His son, fourth plaintiff is representing all the heirs of Venkatasubbu in the suit.
executed sale deed in favour of Sellaperumal. Therefore, the case of the defendant that 1/4 portion of "B" schedule property was given to Venkatasubbu Naidu is acceptable in the light of the pleadings of plaintiffs that tentative partition of "B" schedule property allotting northern 1/4 portion to Venkatasubbu was given a go-bye. In the said sale deed, southern and eastern boundary is shown as the land of the defendant. According to the defendant, he orally purchased the northern 1/4 portion excluding two cents from the fourth plaintiff and therefore, the boundaries have been shown as of his lands. According to the defendant, the fourth plaintiff after sale gave no objection for change of patta and accordingly, the patta was got changed in the name of the defendant with respect to northern 1/4 portion of the "B" schedule property excluding two cents. It is pertinent to note that the fourth plaintiff has not been examined to rebut the contention of the defendant.
the evidence of P.W.1. P.W.1 in his cross-examination has deposed that in Silambimangalam village, there is a family house and the same was given to him and the defendant was not given any house. Though P.W.1 says that defendant was given some other land instead of house, he has not stated which land was given to him. It is also admitted that another house in the same village was given to another plaintiff.
Sd/Assistant Registrar(CS-v) //True Copy//
Sub Assistant Registrar
tsvn To
1.The Additional District Judge (Fast Tract Judge No.2), Cuddalore.
Common Judgment in A.S.Nos.274 and 275 of 2011
CNR(CO) TR(08/01/2018)
3 issues framed by the court
Whether the suit property kept in common or allotted to specific heirs in the oral partition.
Whether defendants acquired title via adverse possession to specific portion.
Whether appellants have a preferential right to purchase respondent's share.
1 provisions across 1 enactments
Muthuraman (Died) by LRs
Ramadoss
Pavunambal
Rajendran
Susila
Chitra
A.Selvam
P.Kalaiyaranasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
