In this second appeal, the High Court examined whether the plaintiffs could claim partition of land based on alleged subsequent sales by their ancestor. The court held that a prior sale rendered any subsequent sale by the same vendor invalid.
The second appeal is dismissed. 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.No.491 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
S.A.No.491 of 2010
Vs.
PRAYER: Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 16.12.2009 made in A.S.No.88 of 2007 on the file of the learned Subordinate Judge, Vellore, confirming the judgment and decree dated 30.03.2007 made in O.S.No.703 of 2003 on the file of the learned Principal District Munsif at Vellore.
For Appellants : Mr. G. Jermiah For Respondents : Mr. V. Perumal, for Mr. T.Dhanya Kumar, for R1
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: R2 & R3- notice served-No appearance J U D G M E N T
Second Appeal has been filed against the judgment and decree dated 16.12.2009 made in A.S.No.88 of 2007 on the file of the learned Subordinate Judge, Vellore confirming the judgment and decree dated 30.03.2007 made in O.S.No.703 of 2003 on the file of the learned Principal District Munsif at Vellore.
2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.
District Munsiff Court, Vellore, are the appellants in this Second Appeal.
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sold his share of 0.99 cents to Murugesan Goundar under registered sale deed dated 10.09.1953 and on the same day, at the insistence of the Ponnuranga Goundar, Chinnapa Goundar sold his share equally,i.e., 0.49 1/2 cents to Ponnuranga Goundar and remaining 0.49 1/2 cents to Murugesa Goundar, which was mutually agreed through the sale deed of Murugesa Goundar. Accordingly, Chinnappa Goundar sold 0.49 1/2 cents to Ponnuranga Goundar on 10.09.1953. Later, sons of Murugesa Goundar, namely Duraisamy Goundar/2nd respondent and Kathirvelu Goundar had effected partition under the registered partition deed dated 18.02.1984, in which, 1.49 cents were alloted to Duraisamy Goundar/2nd respondent and Kathirvelu Goundar was allotted some other property in different places. Thereby, Duraisamy Goundar/2nd respondent was entitled to 1.49 cents and the legal heirs of the Ponnuranga Goundar are entitled to remaining 1.49 cents of land. Though the said Duraisamy Goundar/2nd respondent was entitled to 1.49 cents, he had executed the sale deed dated 27.11.1992 in respect of 1.80 cents of the land in favour of the first defendant, which is described as suit "B" schedule property. The excess of 0.31 cents of land in"B" schedule property belongs to the legal heirs of Ponnuranga Goundar. Hence, the suit for partition of 0.31 3/12
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cents and for mesne profits.
stating that the plaintiffs had filed the suit with false allegations. The averments made in the plaint are false except those are admitted by the defendants. As per registered sale deed, dated 10.09.1953 document no.1993 of 1953, Chinnappa Goundar sold his entire share of 0.99 cents in S.No.174/3 to Murugesa Goundar and Ponnuranga Goundar was entitled to his share of 0.99 cents only. Chinnappa Goundar did not sell 0.49 1/2 cents to Ponnuranga Goundar. Thus, Murugesa Goundar Possessed absolute right over his share of 0.99 cents and another 0.99 cents purchased from Chinnappa Gounar vide document no.1993/1953. Hence, the defendant's vendor's father Murugesa Goundar possessed 1.98 acres in S.No.174/3 out of total extent of 2.98 acres and the said land fell to the share of Duraisamy Goundar/2nd defendant, who in turn, sold the same to the first defendant, vide registered sale deed, dated 27.11.1992 and since then she is in possession and enjoyment of the same and patta has also been granted in her favour and hence, the plaintiffs have no right to claim partition and allotment of 0.31 cents in the "B" schedule
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property and prays for dismissal of the suit.
parties, the following issues were framed by the Trial Court for consideration:
S.A.No.491 of 2010
adduced by the respective parties and the submissions made, the Trial Court dismissed the suit by a judgment and decree dated 30.03.2007. Aggrieved over the same, the plaintiffs had preferred an appeal in A.S.No.88 of 2007 before the Sub Court, Vellore. The First Appellate Court, after considering the entire materials, vide judgment and decree dated 16.12.2009, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Now, challenging the same, the present Second Appeal has been filed by the plaintiff.
both the Courts below erred in dismissing the suit for partition without considering the merits of the case. Both the Courts below failed to note that each brother was entitled to 0.99 cents out of 2.98 acres of A schedule property and they failed to appreciate the execution of Ex.A.3 on the very same day, i.e., on 10.09.1953 by the said Chinnapa Goundar in favour of the Ponnuranga Goundar. The attesters of the above said 6/12
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documents Ex.A2 and Ex.A3 are one and the same. Under Ex.A4 only 1.49 acres had been allotted to the share of the 2nd defendant and he is entitled to alienate that extent alone. The learned counsel reiterated the other grounds raised in the grounds of appeal and thus, pleaded to allow the appeal.
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14. In this circumstances, there cannot be any doubt whatsoever
that consideration of irrelevant fact and non consideration of relevant fact would give rise to a substantial question of law. Further, it does not meet out the parameters laid own by the Hon'ble Supreme Court in the
S.A.No.491 of 2010
following decisions:
(i) AIR 2008 SC 379 – Moses Wilson Vs. Kasturiba.
(ii) AIR 2008 SC 956 – AbdulRaheem Vs. Karnataka Electricity Board.
(iii) AIR 2008 SC 1749 – Kashmir Singh Vs. Harnam Singh and another.
15. Both the Courts below on a proper appreciation of the materials placed on record, both oral and documentary evidence adduced by the respective parties and the principles of law governing the same, had correctly decided the issues and the findings of the Courts below are legally valid and I find no merit in this Appeal. There are no perverse findings, no mis-consideration of evidence and no substantial questions of law are involved in this case.
18.07.2024
S.A.No.491 of 2010
mrp
Index:Yes/No Speaking/Non speaking order NCC: Yes/No
To
1.The Subordinate Judge, Vellore
2.The Principal District Munsif, Vellore
S.A.No.491 of 2010
V.SIVAGNANAM, J.
mrp
S.A.No.491 of 2010
18.07.2024
1 issue framed by the court
Whether the second appeal succeeds based on the validity of prior sales and appreciation of evidence.
Colour shows how this judgement treated each authority
Moses Wilson Vs. KasturibaReferred¶69
AIR 2008 SC 379 · Who else cites this
AbdulRaheem Vs. Karnataka Electricity BoardReferred¶70
AIR 2008 SC 956 · Who else cites this
Kashmir Singh Vs. Harnam Singh and anotherReferred¶71
AIR 2008 SC 1749 · Who else cites this
Saradhammal
Kanthammal
Suseela
Manikodi
Duraisamy
Shanmugam
V Sivagnanam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
