Dismissed

Jothi Ramalingam v. Ellappan

Madras HC22 Mar 2021SA/183/2008

Case brief

AI extract

What is this about?

In a second appeal, the High Court examined a partition suit involving properties originally acquired by the grandmother. The court upheld lower courts' findings, rejecting the defendant's claims of benami ownership, oral partition, and adverse possession against the plaintiff entitled to a share.

What did the court decide?

The judgment and decree of 31.10.2006 are confirmed and the second appeal is dismissed with no costs.

Jothi Ramalingam Vs Ellappan — Partition | Madras HC (2021)

¶1

THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED:22.03.2021

¶3

CORAM:

¶4

THE HON'BLE MR.JUSTICE T.RAVINDRAN

¶5

S.A.No.183 of 2008 and M.P.No.1 of 2008

¶6

Jothi Ramalingam S/o, Munusamy Mudaliar, 3/21, Naidu Street, Nemam Village & Post, Poonamallee Taluk, PIN – 602 107. ... Appellant/Defendant

¶7

Vs.

¶8

Ellappan, S/o, Sabapathy Mudaliar, 3/83, Pillayarkoil Street, Nemam Village & Post, Poonamallee Taluk 602 107.

¶9

Kasthuri, D/o, Sabapathy Mudaliar, 14-A, Venguliamman Koil Street, Nandambakkam Village & Post, Chennai – 89.

¶10

... Respondents

¶11

Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree of the learned Subordinate Judge, Poonamallee dated 31.10.2006 passed in A.S.No.42 of 2005 on his file confirming the judgment and decree of the learned District Munsif, Poonamallee dated 25.10.2004 passed in O.S.No.219 of 2004 on his file.

¶12

For Appellant : Mr.Christopher Vijay For Respondents : Mr.S.Siva Shanmugam for M/s. Ravi Shankar

¶13

https://hcservices.ecourts.gov.in/hcservices/

¶14

J U D G M E N T

¶15

Challenge in this second appeal is made to the judgment and decree dated 31.10.2006 passed in A.S.No.42 of 2005 on the file of the Subordinate Court, Poonamallee, confirming the judgment and decree dated 25.10.2004 passed in O.S.No.219 of 2004 on the file of the District Munsif Court, Poonamallee.

¶16

The defendant in O.S.No.219 of 2004 is the appellant in this second appeal.

¶17

3.For the sake of convenience, the parties are referred to as per their rankings in the trial lcourt.

¶18

The deceased first plaintiff claiming partition in respect of the suit properties has laid the suit against her brother, the defendant. According to the plaintiff, the suit properties belonged to her grandmother Chinnammal and thus would putforth the claim that she is entitled half share in the suit properties.

¶19

The defendant/appellant resisted the plaintiff's suit contending that the plaint A schedule, item 2 in B schedule are the properties of his father Ponnusamy and admitted that the third item of the B schedule belonged to Chinnammal, the grandmother and would putforth the case that the first item in B schedule was obtained by Chinnammal through her husband. Further, he would also putforth the case that the plaintiff had failed to include all the family properties and therefore the suit is bad for partial partition and according to him, the C and D schedule described in the written statement are also the joint family properties. It is also putforth by him that the oral partition was effected on 01.10.1971 whereunder, the C schedule properties described in the written statement was allotted to the plaintiff and the plaint A and B schedule and D schedule properties in the written statement had been allotted to the defendant and accordingly the defendant had been enjoying his allotted properties continuously by obtaining patta, paying Kists etc., and therefore it is his case that the plaintiff is not entitled to claim the partition in the suit properties. The defendant would also putforth the claim of title to the properties allotted to him by way of adverse possession and accordingly sought for the dismissal of the plaintiff's suit.

¶20

In support of the plaintiff's case, P.W.1 was examined. Exs.A1 to A24 were marked. On the side of the defendant, D.Ws.1 and 2 were examined. Exs.B1 to B60 were marked. Exs.X1 and X2 were also marked.

¶21

https://hcservices.ecourts.gov.in/hcservices/

¶22

On a consideration of the oral and documentary evidence adduced in the matter and the submissions putforth by the respective parties, the Courts below were pleased to declare that the plaintiff is entitled to obtain half share in the suit properties as prayed for and accordingly granted the preliminary decree in favour of the plaintiff. Challenging the same, the second appeal has been laid by the defendant.

¶23

As above pointed out, according to the plaintiff, the suit properties belonged to Chinnamal, the grandmother of the parties, whereas, the defendant would putforth the case that though the plaint A schedule and second item of B schedule properties though had been acquired in the name of Chinnammal, they are actually acquired by his father Munusamy. Thus, it is noted that the defendant has raised the plea of benami as regards the abovesaid properties and according to him, though it stands in the name of Chinnammal, his grandmother, the same actually belong to Munusamy. However, considering the provisions contained in Benami Transactions Prohibition Act, 1988, the abovesaid plea of benami raised by the defendant has been rightly rejected by the Courts below and no interference is warranted with reference to the same.

¶24

Though the defendant would claim that the C and D schedule properties described in the written statement belonged to the family, however, he has not come forward clearly as to how come they are the joint family properties, particularly, he having not pleaded and established as to, in whose name the said properties had been acquired and whether the said properties had been enjoyed as the joint family properties at any point of time and such being the position, the claim of the defendant without any basis or materials that the properties described in the C and D schedule of the written statement also form part and parcel of the joint family properties, as such, had been rightly disbelieved and rejected by the Courts below. In such view of the matter, the plea of the defendant that the plaintiff's suit is bad for partial partition also falls to the ground.

¶25

The defendant has pleaded the oral partition on 01.10.1971 whereunder, according to him, the plaint A and B schedule properties and D schedule properties described in the written statement had been allotted to his share and the C schedule properties described in the written statement had been allotted to the plaintiff. However, as rightly concluded by the Courts below, when the defendant has failed to establish that C and D schedule properties described in the written statement also forms part of the joint family properties, his case of

¶26

https://hcservices.ecourts.gov.in/hcservices/

¶27

oral partition effected with the plaintiff inclusive of C and D schedule properties found in the written statement cannot be believed and rightly rejected by the Courts below.

¶28

As regards the oral partition putforth by the defendant, there is no acceptable and reliable material putforth by him and furthermore, no reliable materials have been placed by the defendant to hold that he had been exclusively in the possession and enjoyment of the properties said to have been allotted to him under the alleged oral partition. Considering the materials placed on record, when particularly, noting the close relationship between the parties, the defendant being the brother of the plaintiff and furthermore, the deceased first plaintiff's daughter been given in marriage to the defendant, accordingly, the plaintiff has putforth the case that the defendant had been in the enjoyment of the properties on behalf of the plaintiff also. In such view of the matter, merely because, the defendant had endeavored to obtain the patta in respect of the suit properties that by itself would not entitle the defendant to project the claim of title as putforth by him. When the defendant has failed to establish the plea of partition projected by him, it does not stand to reason as to how he had been granted the patta in respect of the entire suit properties, when admittedly the plaintiff is also found to be the co-owner of the suit properties.

¶29

When the parties are found to have derived title only through their grandmother Chinnammal and the plea of benami raised by the defendant having been rightly rejected by the Courts below and the plea of oral partition claimed by the defendant does not merit acceptance sans any convincing and reliable materials pointing to the same. The claim of the defendant that he had been exclusively in the possession and enjoyment of the alleged allotted properties, as such, cannot be countenanced.

¶30

Similar is the plea of adverse possession putforth by the defendant. When the plaintiff and the defendant are found to be the co-owners of the suit properties and considering the close relationship between the parties, as above pointed out, in such view of the matter, the defendant should plead and establish that the plaintiff had been excluded and ousted from the enjoyment of the suit properties to her knowledge and the defendant had been enjoying the suit properties in his own, openly, continuously and uninterruptedly by asserting title on himself to the knowledge of the plaintiff with animus possidenti beyond the statutory period and with reference to the same, when no acceptable and reliable materials

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

is forthcoming on the part of the defendant, the plea of adverse possession putforth by him also does not merit acceptance.

¶33

In the light of the abovesaid factors, considering the reasonings and conclusions of the Courts below, they being founded on the proper appreciation of the materials placed on record, both oral and documentary, both on factual matrix as well as on the point of law and whey they are not shown to be in any manner, perverse, illegal and illogical, I do not find any valid reason to interfere with the same. Resultantly, no substantial question of law is found to be involved in this second appeal.

¶34

In conclusion, the judgment and decree dated 31.10.2006 passed in A.S.No.42 of 2005 on the file of the Subordinate Court, Poonamallee, confirming the judgment and decree dated 25.10.2004 passed in O.S.No.219 of 2004 on the file of the District Munsif Court, Poonamallee are confirmed and resultantly the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.

¶35

Sd/-

¶36

Assistant Registrar(CO)

¶37

//True copy//

¶38

Sub Assistant Registrar

¶39

mfa

¶40

¶41

The Subordinate Judge, Subordinate Court, Poonamallee.

¶42

The District Munsif, District Munsif Court, Poonamallee.

¶43

Copy to

¶44

The Section Officer, VR Section, High Court, Chennai.

¶45

S.A.No.183 of 2008 and M.P.No.1 of 2008

¶46

SSD(CO) GMY(06/09/2021)

¶47

https://hcservices.ecourts.gov.in/hcservices/

Jothi Ramalingam v. Ellappan

Case brief

What is this about?

What did the court decide?

Jothi Ramalingam v. Ellappan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.Mohanraj Vs a.Palanisamy

L.a.T.Selvaraj Vs Rajalakshmi

Yogavalli Vs Elumalai

Ramadas Naidu Vs Gengamanaidu

Kumari Vs Selvam

N.Ramachandran Vs K.Selvam