Second Appeal dismissing challenge to concurrent findings in partition suit. High Court held appellant failed to prove oral partition or ouster as no documentary evidence was produced.
Second Appeal dismissed. Connected miscellaneous petition closed. No 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(MD).No.485 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.485 of 2022 and C.M.P(MD)No.6194 of 2022
Nallathambi Asari .... Appellant/Appellant/1st Defendant
Vs.
1.D.Santhi ...1st Respondent/1st Respondent/Plaintiff 2.C.Rani 3.C.Sivasami 4.C.Saranya 5.D.Kumar ... Respondents 2 to 5 /Respondents 2 to 5 /Defendants 2 to 5
Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 31.01.2019 passed in A.S.No.10 of 2017 on the file of the Principal District Court, Pudukkottai, confirming the judgment and decree dated 03.06.2016 passed in O.S.No. 234 of 2010 on the file of the Subordinate Court, Pudukkottai.
For Appellant : Mr.D.Rameshkumar For R1 : Mr.N.Kamesh For R2 to R5 : Mr.P.Pandiarajan
J U D G M E N T
This Second Appeal has been filed challenging the concurrent findings of the courts below. The appellant is the first defendant in the suit
S.A(MD).No.485 of 2022
in O.S.No.234 of 2010 on the file of the Subordinate Court, Pudukkottai.
The respondents 2 to 5 are the defendants 2 to 5 in the suit. The suit was filed for partition claiming 1/6th share in the suit schedule property.
3.The plaintiff is the grand-daughter of Perumal Asari. Her mother Renganayaki Ammal, who is the daughter of Perumal Asari died and after her death, she has filed the suit seeking for partition of her mother's share out of which she is entitled for 1/6th share each along with her brother, who is the fifth respondent/fifth defendant in the suit. The plaintiff has claimed in the plaint that though her mother during her life time was entitled to 1/3rd share in the suit schedule property, she was deprived of the same by her uncles namely Chockalinga Asari and Nallathambi Asari.
S.A(MD).No.485 of 2022
partition between Perumal Asari, their father and Chockalinga Asari and Nallathambi Asari and therefore, the plaintiff does not have any right over the suit schedule property and further, she has been ousted on account of the long lapse of time.
S.A(MD).No.485 of 2022
been ousted from claiming any right in respect of the suit schedule property on account of the oral partition effected between Perumal Asari and his sons Chockalinga Asari and Nallathambi Asari, they have not filed any documentary evidence before the trial court either in the form of a document confirming oral partition or through revenue records standing in their names. Admittedly, the only revenue record available on record is Ex.A.1 and the same also stands only in the name of Perumal Asari, deceased from whom the plaintiff as well as the contesting defendants derive rights over the suit schedule property. While that be so, when the plaintiff has discharged her burden as per the provisions of Section 101 of Indian Evidence Act that she is entitled to 1/6th share in the suit schedule property by filing documentary evidence and also letting-in oral evidence, it is for the defendants to disprove the same if they claim that the plaintiff is not entitled for any share in the suit schedule property. They have miserably failed to disprove the contentions of the plaintiff by letting-in oral and documentary evidence. The trial court has rightly decreed the suit in favour of the plaintiff by granting the relief of partition as prayed for in the plaint.
S.A(MD).No.485 of 2022
S.A(MD).No.485 of 2022
respect of the suit schedule property by passage of time. The said judgment has no bearing to the facts of the instant case. Admittedly, in the instant case, no documentary evidence was produced by the appellant/1st defendant to substantiate his claim that there was oral partition between their father and the contesting defendants. In the decision referred to supra, the defendant had a patta standing in his name and on account of long passage of time, this Court held that the plaintiff's right has been ousted. But in the case on hand, the contesting defendants have not produced any documentary evidence to establish their exclusive right over the suit schedule property and hence, the decision relied upon by the learned counsel for the appellant/1st defendant has no bearing to the facts and circumstances of the instant case.
S.A(MD).No.485 of 2022
23.03.2023
Index : Yes/No Internet: Yes/No CM
To
VR Section,
Madurai Bench of Madras High Court, Madurai.
S.A(MD).No.485 of 2022
ABDUL QUDDHOSE, J.
CM
S.A.(MD)No.485 of 2022 and C.M.P(MD)No.6194 of 2022
23.03.2023
3 issues framed by the court
Whether the appellant has been ousted from claiming rights in suit property due to passage of time and oral partition.
Whether the lower courts framed substantial questions of law in dismissing the appeal.
Whether the appellant failed to discharge burden of proving oral partition.
Colour shows how this judgement treated each authority
Vellapandian @ Thanga Arumugasamy Nayakkar Vs. Duraiappan (died) and 17 othersDistinguished¶36
2022(2) MWN (Civil) 109
2 provisions across 2 enactments
Nallathambi Asari
1.D.Santhi
2.C.Rani
3.C.Sivasami
4.C.Saranya
5.D.Kumar
Abdul Quddhose
Unknown
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Abdul Quddhose and Unknown
Parties & counsel
