Second appeal by plaintiff challenging order limiting title declaration to 0.07 cents. Court held defendant's admission and documentary evidence limited plaintiff's entitlement to 0.07 cents, upholding first appeal.
Second appeal dismissed; first appellate decree upheld; trial court decree set aside in part.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2021
CORAM
THE HONOURABLE MRS. JUSTIC E R.HEMALATHA
S.A.No.919 of 2008
Appellants 7 and 8 represented by their grand mother Manickam.
Appellants 2 to 8 brought on record as LRs of the deceased sole appellant vi.z, Ayyasamy Udyar vide order of court dated 01.11.2011 made in CMP No.16885/2019 in S.A. No.919/2008.
Vs.
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 14.09.2007 passed in A.S. No.83 of 2005, on the file of the Sub Court, Kallakuruchi, partly reversing decree and judgment dated 20.01.2005 passed in O.S. No.75 of 1999, on the file of the I Additional District Munsif, Kallakuruchi.
For Appellants : Ms.G.Sumitra
For R1 : Mr.P.Valliappan
R2 : No Appearance
JUDGMENT
The unsuccessful plaintiff before both the courts below has filed the present second appeal. During the pendency of this appeal, the appellant died. Therefore, his legal heirs were impleaded as appellants 2 to 8.
partition, no pleading is necessary with regard to the partition that took place in the family of the plaintiff. The first appellate court, in its judgment dated 14.09.2007, has observed thus:
"19. The plaintiff is bound to prove the partition and also to specify, what are the shares, specifically allotted to his family by way of oral partition. According to the plaintiff's proof affidavit, he admits that since 1970 his father had been in exclusive enjoyment of the property and also patta had been issued. Similarly other brother also if oral partition pleaded is true, would enjoy the properties allotted to them exclusively. But, on the side of the defendant, Ex.B4 has been marked. Ex.B4 is, certified copy of sale certificate given by the Joint II SubRegistrar, Kallakurichi during the year 1974. On perusal of Ex.B4, the properties stated to be with the Official receiver are all shown as undivided property. And on perusal of each description of property, only 1/3rd share of Ponnusamy Udayar has been brought for sale. Hence, as per the evidence of the plaintiff, if only oral partition had been effected during the year 1969, and if the entire suit property had been allotted to the share of plaintiff's father Irusappa Udayar, who is alleged to have been in exclusive possession and enjoyment of the suit property, why 1/3rd share of the suit property has been brought for court sale, with regard to Ponnusamy Udayar's share? Each and every description of property in Ex.B4, relates only to 1/3rd share of Ponnusamy Udayar. Hence, the contention of the plaintiff is that, since 1970, the properties were exclusively enjoyed by way of partition has been negatived by Ex.B4, which is dated 1974. Hence, the version of the defendant that, 1/3rd share in each property was allotted to each brother has become a more probable situation in view of Ex.B4. Moreover, plaintiff's father Irusappa Udayar has purchased 0.02 cents in suit Survey No.119/5, when Ponnusamy Udayar's share had come for court sale. If Irusappa Udayar has been allotted the entire suit property, why he has not taken any steps to remove the suit item from sale by the official receiver. In contra, he has purchased the 0.02 cents. There is no pleading or evidence on the side of the plaintiff to explain the reason for purchase of 0.02 cents by way of court sale. Hence, the plaintiff is estopped from pleading that each of the brother were not allotted 1/3rd share in the suit property. Moreover, why the plaintiff's father has not taken any
steps also there is no explanation to transfer the patta in his name since 1969 to 1982? ....."
The above observation of the first appellate court is based on sound reasoning and I do not find any cause to interfere with the same. The first appellate court further observed in paragraph 28 that the lower appellate court should not have dismissed the suit in toto since as per oral and documentary evidence adduced on both sides, the plaintiff is entitled to 0.07 cents including the property of 0.02 cents on the eastern side of 0.05 cents mentioned in Ex.B5 sale deed. The contention of the appellant/plaintiff is that based on the admission made by the defendant, declaration of his title to 0.10 cents should be granted in his favour. Such an argument cannot be accepted in the light of the fact that the plaintiff's father purchased only 0.02 cents out of 0.04 cents in survey No.119/5 of Karur Village and as per the partition between the brothers, he is entitled to another 0.05 cents in the suit survey number. The plaintiff knows the extent of property, which his father purchased through Ex.B4 and this document was not also filed on his side. On the contrary, a certified copy of the sale deed dated 28.11.1974 (Ex.B4) executed by the official receiver in favour of the plaintiff's father was filed only on the side of the defendants. The plaintiff's father purchased 0.02 cents in Survey No.119/5 in the court auction sale consequent upon the declaration of one of his brothers as insolvent. Therefore, the plaintiff cannot seek for a declaratory decree for more extent than what he is entitled to. The observations of the first appellate court are perfectly in order and in view of the same, the substantial questions of law 1 and 2 are answered against the appellant.
i. the second appeal is dismissed. No costs.
Sd/-
Assistant Registrar
True Copy//
Sub Assistant Registrar
bga
To
1. The Subordinate Judge, Kallakuruchi. 2. The I Additional District Munsif, Kallakuruchi. 3. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.P.Valliappan, Advocate, S.R.No.44623 S.A.No .919 of 2008
NMI[co] NSK 30/11/2021
3 issues framed by the court
Whether the lower appellate court erred in requiring proof of title when respondents admitted extent?
Whether patta (Ex.A1) is a valid document to prove possession of suit property?
Whether plaintiff is entitled to declare title to 0.10 cents or limited to 0.07 cents?
1 provisions across 1 enactments
Manickam
Ayyasamy Udyar (died)
Ayyasamy Udyar (legal heirs)
Munusamy
Karuppayya
E R. Hemalatha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
