In a second appeal regarding a property dispute involving alleged oral partition and collusion, the High Court of Judicature at Madras dismissed the appeal, confirming the lower courts' dismissal of the suit.
Second Appeal dismissed; judgment and decree of courts below confirmed; no order as to costs.
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.
S.A.No.1581 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.12.2022
CORAM :
THE HON'BLE Ms.JUSTICE P.T.ASHA S.A.No.1581 of 2004
Ponnusamy
... Appellant
Versus
Peria Theerthan
... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to allow the second appeal setting aside the decree and judgment dated 20.06.2003 and made in A.S.No.11 of 1999 on the file of Subordinate Court, Athur, confirming the judgment and decree dated 25.11.1998 and made in O.S.No.181 of 1992 on the file of the District Munsif Court, Athur.
For Appellant : Mr.S.T.Bharath Gowtham, for Mr.T.R.Rajaraman
For Respondent : Mr.P.Jegadeesan
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S.A.No.1581 of 2004
JUDGMENT
The plaintiff, who has concurrently lost before the Courts below, is
the appellant before this Court. The suit is filed for the following relief:
“ thjpapd; RthjPd mDgtj;jpw;F gpujpthjpfSk;. MtuJ Ml;fSk; vt;tpj ,ila{Wk; bra;af; TlhJ vd cWj;Jf; fl;lis ghpfhuj;jpw;fhf ,t;tHf;F jhf;fy; bra;ag;gl;Ls;sJ/ ”
“ nryk; o. bgj;jeaf;fd;ghisak; rg;o. Mj;J}h; tl;lk;. Rpd;dfy;uhad; kiy tlf;FfhL gl;ofhu bry;y';Fwpr;rp fpuhkk; gl;lh vz;/201 rh;nt vz;/133-2 E}w;W Kg;gj;jp K:d;wpy; ,uz;L g[";/bcwf;/4.79.5 jPh;.5.95 ,jpy; Kjy; Vf;fh; 0/50 brd;l; g{uh ,jw;F brf;Fge;jp yl;Rkp epyj;Jf;Fk; fpHf;F bghl;oak;khs; epyj;Jf;F nkw;F bts;isad; epyj;Jf;F bjw;F gr;rpak;khs; epyj;Jf;F tlf;F ,jd; kj;jpapy; i& epyk; g{uht[k; ,uz;lhtJ jhf;F Vw;F 0/25 brd;l; g{uh ,jw;F brf;Fge;jp khhpak;kd; nfhtpy;
S.A.No.1581 of 2004
epyj;Jf;F tlf;F rpd;digad; epyj;Jf;F fpHf;F Mz;o epyj;Jf;F bjw;F mz;zhkiy epyj;Jf;F nkw;F ,jd; kj;jpapy; i& epyk; g{uh Mf Vf;fh; 0/75 brd;l; g{uh i& epyj;jpYs;s g[spakuk; xd;W g{uht[k; i& epyj;jpw;Fz;lhd rfytpjkhd ghj;jpaKk; khK:y;go nghf tu tHp eil jl ghj;jpaKd;go i& brhj;J fpuaj;jpw;Fl;gl;lJ/ i& brhj;J rpd;dfy;uhad;kiy tlf;F ehL vy;iyf;Fl;gl;lJ/ ”
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total stranger to the property and who wanted to purchase the same, started giving pinpricks in the enjoyment. Therefore, constraining the plaintiff to file a suit in O.S.No.181 of 1992 on the file of the learned District Munsif, Athur. Both the parties are being referred to in the same rank as before the trial Court for the ease of understanding.
S.A.No.1581 of 2004
for 75 cents, in which 25 cents is in excess of what the plaintiff's vendor
was entitled to and that which he had retained. In fact, the defendant, in
his written statement, had stated that he was ready for partition and ready
to give up his share. Hence he prayed for the dismissal of the suit.
issues:
“ 1) jhth brhj;jpy; thjpf;F chpik jFjp cs;sjh ?
thrf';fis kWf;f Kuz;jil cs;sjh ?
mspf;fj;jf;fjh ?
had returned a finding that no declaratory relief had been claimed nor Court fee paid for the same. The third issue, as to whether the defendant
S.A.No.1581 of 2004
was estoped from denying the contents of Muchilika dated 30.10.1988,
the learned Judge held that the plaintiff had not raised a single plea about the Muchilika in his plaint and therefore this did not call for any findings. Ultimately, the learned Judge had observed that the plaintiff has come to Court by suppressing certain material facts. Firstly, he had suppressed the fact that the defendant is the brother of his vendor. Secondly, there is no pleading as to the extent of property that his vendor had been alloted in the oral partition. The learned Judge had also observed that in Ex.A3, there is an interpolation wherein the total extent, in respect of which the defendant had stated he has no objection to Lakshmiammal enjoying, has been scored out with no counter signature. Therefore, the contentions that
the defendant had agreed that he had no right in the suit property has to be necessarily denied.
establish his right to 75 cents, particularly when he has not been able to rebut the evidence of the defendant that each sharer had got an extent of 1.50 Acres. That apart, despite the fact that the plaintiff's right to the suit property had been denied, the plaintiff had not chosen to amend the suit to include the prayer for declaration. Ultimately, the suit was dismissed.
S.A.No.1581 of 2004
“1.When the plaintiff has established his possession by filing the adangal extract Ex.A5 and in the absence of defendant establishing a particular kind of division between him and the vendor of the plaintiff allotting the disputed property to him, is the lower appellate Court is right in confirming the dismissal of the suit ?
2.When the evidence of the defendant as DW.1 disclose that he was not allotted any property in the present suit, still is the lower appellate Court is right in conferring the dismissal of suit ?”
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S.A.No.1581 of 2004
entitled to the suit property measuring 75 cents and the said property is available in two portions. One portion measured 50 cents and was called Kovil Kaadu and the portion measuring 25 cents was called Seman Kaadu, in view of its red soil. The defendant has denied the title of the plaintiff to the entire extent of 75 cents stating that the Vendor of the plaintiff only had an extent of 50 cents remaining after he had sold 1 Acre to the plaintiff's mother. Both the defendant as well as the plaintiff pleaded an oral partition. The plaintiff is silent about the extent of property, that had fallen to the share of his Vendor. The defendant on the contrary had stated that total extent of 4 Acres and 50 cents in Survey No.133/2 had been divided into three portions with each person being alloted an extent of 1 Acre and 50 cents. Therefore, the plaintiff's vendor was also alloted an extent of 1 Acre and 50 cents. Out of this, admittedly he has sold 1 Acre to the plaintiff's mother. That would leave him with only extent of 50 cents. There is no explanation forthcoming from the plaintiff as how his vendor is entitled to an excess of 25 cents.
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S.A.No.1581 of 2004
property and not the suit property.
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judgment and decree of the Courts below is confirmed. There shall be no order as to costs.
05.12.2022
Index : yes/no
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S.A.No.1581 of 2004
Speaking order/Non-speaking order nsa
To
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S.A.No.1581 of 2004
P.T.ASHA. J.,
nsa
S.A.No.1581 of 2004
05.12.2022
2 issues framed by the court
Whether the lower appellate court was right in confirming dismissal when the plaintiff established possession but failed to prove vendor's full title or defendant's exclusion?
Whether a scored-out and unsigned document (Ex.A3) supports the plaintiff's claim that the defendant waived his rights to the suit property?
1 provisions across 1 enactments
Ponnusamy
Peria Theerthan
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
