Second appeal against concurrent decrees in a partition suit. The courts below found the vendor had no title to convey an excess 3960 sq.ft beyond her settlement deed, and that the property was never demarcated. Both substantial questions of law were answered against the appellant and the appeal was dismissed.
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.706 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Delivered on : 28.10.2024
Reserved on : 23.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
S.A.No.706 of 2012
1.V.T.Natarajan (died)
...Defendant / Appellant / Appellant
2.Jaya 3.Arthi
4.Venkatesh
...Appellants
**Appellants 2 to 4 brought on record as legal heirs of the deceased sole appellant, viz., Natarajan vide Court Order dated 16.02.2023 made in C.M.P.Nos.3663, 3665 & 3666 of 2024 in S.A.No.706 of 2012.
-Vs-
V.C.Nagarajan son of Sikkannan Rep by his Power Agent Manickam W/o V.C.Nagarajan Door No.45, Mariamman Kovil Street, Veerakeralam Post, Coimbatore – 7. Respondent
Prayer:- Second Appeal filed under Section 100 of CPC, to set aside the decree and judgment made in A.S.No.37 of 2007 dated 07.02.2012 before the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, confirming the decree and judgment in O.S.No.606 of 1998 dated 11.09.2006 by the II Subordinate Court, Coimbatore.
For Appellants : Mr.P.Nagaraju For Respondent : Mr.S.P.Vishnu Prasad For Mr.V.Nicholas
S.A.No.706 of 2012
J U D G M E N T
The second appeal is filed by the defendant in the suit, who has lost before the Courts below.
S.A.No.706 of 2012
plaintiff is the son of Sikkanna and the grandson of Rangammal. The said Rangammal purchased the vacant site measuring 12 cents and constructed seven anganam east facing titled house with the assistance of her husband Eray Gowder.
S.A.No.706 of 2012
Accordingly, the plaintiff had become an absolute owner of the southern share of the suit property.
cents along with 3 ½ anganam house. The suit property with 7 ½ anganam east facing house was not at all partitioned by metes and bounds till date of filing the suit.
S.A.No.706 of 2012
defendant is the owner of the northern portion of the suit property with the specific boundaries by metes and bounds, totaling an extent of 3960 sq. ft., and another 50 sq.ft., house with front and backyard and remaining vacant space which was purchased by the defendant as per the document dated 15.07.1978. The specific case of the defendant is that the plaintiff had
given away the suit schedule property to the adjacent owners who are residing on the southern side of the suit schedule property to an extent 350 sq.ft.
was purchased by the respective parties from their predecessors in title with specific boundaries and therefore, the plaintiff is not entitled for any partition and the suit is not maintainable for non joinder of necessary parties. The defendant had filed additional written statement contending that the common owners who are necessary parties were not made as a party in the suit. Unless the entire S.F.No. has been surveyed, an effective
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decree cannot be passed in the suit. Therefore, the suit is bad for nonjoinder of necessary parties. Accordingly, the defendant prayed for dismissal of the suit.
a)Whether the suit for partition is maintainable?
b)Whether the suit is bad for non-joinder of necessary parties?
c)Whether the Court fee was paid in accordance with the Tamil Nadu Court Fee and Suit Valuation Act?
d)Whether the plaintiff is entitled for the relief of partition as prayed for? e)Any other relief could be granted?
a)Whether the boundaries of the suit property is to be identified by conducting a survey with the aid of surveyor and fix the boundaries?
b)Whether the suit is beyond the limitation?
c)Any other relief could be granted?
S.A.No.706 of 2012
to A-16 were marked on the side of the plaintiff. The defendant was examined as D.W-1 and the said Thimakkal, w/o. Eriatha Gowder was examined as D.W-2. On the side of the defendant, Exs.B-1 to B-7 were marked.
S.A.No.706 of 2012
was only 9 cubit x 12 cubit x 12 cubit with 3 ½ angalam house. However, an excess extent of 3960 Sq.ft was sold in favour of the defendant vide Ex.B-1. There was no explanation as to how an excess extent of 3960 sq.ft was sold by D.W-2 while she obtained only the extent mentioned in Ex.A2 i.e., the northern share of the suit property vide Ex.A-8 executed by Eriatha Gowder. Therefore, the Trial Court disbelieved the evidence of D.W-1 and D.W-2 and found that D.W-2 is not entitled to execute sale deed to an extent larger than what was settled in her favour vide A-8.
S.A.No.706 of 2012
S.A.No.706 of 2012
Court to receive additional documents 1 to 8. The said application was dismissed by the First Appellate Court for the reason that the documents produced at the appellate stage were obtained subsequent to the disposal of the suit. The First Appellate Court found that the very filing of application in I.A.No.526 of 2011 after disposal of suit would prove that the appellant / defendant did not have title over the suit property during trial and till the disposal of the suit.
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the extent settled in her favour vide Ex.A-2 and nothing more. Therefore, she is entitled to execute sale deed only to an extent of 3 ½ anganam house
and 243 Sq.ft vacant land which is the extent mentioned in Ex. A2.
a)Whether the Courts below have rendered a perverse finding that the suit property is an undivided property in respect of which the plaintiff can seek the relief of partition?
S.A.No.706 of 2012
b)Whether the suit for partition is not maintainable in the light of the fact that Eriatha Gowder got a property by way settlement from his mother not as an undivided share, but as a property within specified boundaries?
S.A.No.706 of 2012
property was never surveyed and demarcated. Eriatha Gowder obtained the northern side of the suit property vide Ex.A-2, and the remaining share in the property was initially sold to Rukmaniammal. However, till the date of filing of the present suit, the property was not surveyed and demarcated. Therefore, taking advantage of the same, the defendant is claiming the larger extent of land in which he has no right whatsoever. Therefore, the respondent is entitled to the relief of partition and the suit for partition is maintainable.
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land vide Ex.B-1 in favour of the defendant was examined and the Courts below have rightly held that the said Thimmakkal does not have title over the larger extent as only 3 ½ anganam house and an extent of 243 Sq.ft vacant land was settled in favour of Eriatha Gowder vide Ex.A-2 which is the parent document of Exs.A-8 and B-1.
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surveyed till the date of evidence. Therefore, the defendant has failed to prove by way of oral and documentary evidence that the property was already divided.
S.A.No.706 of 2012
28.10.2024
cda Index : Yes / No Speaking / Non-Speaking Order Neutral Citation : Yes / No
S.A.No.706 of 2012
To
S.A.No.706 of 2012
N.SENTHILKUMAR, J.
cda
Judgment in S.A.No.706 of 2012
28.10.2024
2 issues framed by the court
Whether the Courts below rendered a perverse finding that the suit property was undivided and partition could be sought?
Whether a partition suit is maintainable where the property was allegedly settled with specified boundaries?
1 provisions across 1 enactments
V.T.Natarajan (died)
Jaya
Arthi
Venkatesh
V.C.Nagarajan son of Sikkannan Rep by his Power Agent Manickam
N.Senthilkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
