A. Palanisamy Vs Venkatachalam

Prayer:- Second Appeal has been filed under Section 100 C.P.C., against the judgment and decree dated 24.11.2023 made in A.S.No. 01 of 2023 on the file of the Sub-Court, Palladam confirming the judgment and decree

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dated 25.11.2022 made in O.S.No. 251 of 2009 on the file of the District

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Munsif Court, Palladam.

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For Appellant : Mr.K.Govi Ganesan For Respondents : Mr. M.Guruprasad for R1 to R7

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S.A. No. 593 of 2024

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JUDGEMENT

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Challenging the concurrent findings of the courts below rendered in A.S.No.01 of 2023 on the file of Sub-Court, Palladam arising out of trial court findings in O.S.No.251 of 2009 on the file of District Munsif Court, Palladam, this Second Appeal was preferred by the appellant/plaintiff.

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2.For the sake of convenience, the parties are denoted as per the ranking in the suit.

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Before the trial court, the plaintiff filed a suit for the relief of declaration and consequential permanent injunction restraining the defendants not to cause interference in respect of suit properties in Survey Nos. 375/1B and 374/1A. According to plaintiff, on 13.04.1948 through a sale deed one Avinashiappa gounder and Ramasamy Gounder jointly purchased the properties and thereafter, on 03.10.1979 they partitioned the schedule mentioned properties, thereby the properties were divided among them. The 'A' schedule property was allotted to Avinashiappa gounder and 'B' schedule property was allotted to Ramasamy Gounder. The plaintiff is one of son of Avinashiappa gounder. The 1^st defendant is the second son of

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Ramasamy gounder. As per the partition, 'A' schedule property was allotted to plaintiff's father, which comes around 5.37 acre and for 'B' schedule property was allotted to father of 1^st defendant, which comes around 5.37 acre during partition with other common rights including Well. Subsequently, after sub-division, UDR patta was issued and thereafter only the plaintiff came to know that more extent was allotted to Ramasamy gounder, father of 1^st defendant. Hence, he raised objections. But, it was not accepted by the 1^st defendant. Therefore, he came forward with the present suit.

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The contesting defendants submitted that after the partition held on 03.10.1979, sub-divisions were effected in the year 1994 and in the presence of both parties, properties were measured. Accordingly, UDR Pattas were issued for Avinashiappa and Ramasamy gounder in the year of 1984 for Survey Nos. 374/1 and 375/1, thereby an extent of 4.83 acres and an extent of 5.05 acres was allotted respectively. Thereafter, the properties were enjoyed by both parties respectively. The plaintiff also sold portion of property to third party based on said sub-division. Nearly about 20 years

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later, after the sub-division, he filed the present suit as such is not maintainable and prayed to dismiss the suit.

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The Trial Court framed issues. Considering the facts as well as evidence on record, the trial court found that as per patta passbook, the property in Survey No.374/1A was subdivided, which belongs to plaintiff's branch land and the property in Survey No.375/1B belongs to defendants branch was also subdivided, but all these facts have not been brought before this court by the plaintiff with correct material facts. Therefore, he is not entitled for the relief as prayed for. He approached the court without disclosing the said facts. Accordingly, the suit was dismissed. Against which, he preferred the appeal suit in A.S.No.01 of 2023 on the file of SubCourt, Palladam. The first appellate judge independently analysed the facts and evidence on record and framed separate issues and finally held that after the partition held in the year of 1979, the plaintiff came to know that more extent was allotted to the defendants during UDR patta of the year 1984, he ought to have raised objections much earlier. But, as on date, he has not produced any document to show that he raised objections before the RDO while preferring appeal suit. Having came to know about the UDR patta in

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the year 1984, the plaintiff sold portion of property and thereafter nearly about 20 years later, he approached the court as such is not maintainable. Accordingly, the appeal suit was dismissed by relying the following authorities :-

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i. 2003 Supreme (SC) 131

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ii. 2019 Supreme (SC) 123 iii. 2022 Live Law (SC) 241 iv. 2022 (1) Civil Court cases 77 v. 2021 (4) Civil Court cases 202 vi. 2022 O Supreme (SC) 718 vii. 2022 (3) MLJ 58 O Supreme (SC) 718 viii. 2018 (6) CTC 384

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ix. 2022 (5) CTC 932

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Challenging the concurrent findings of the courts below, now, the plaintiff approached this Court.

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On perusal of facts, it would clearly reveals that one Ramasamy

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gounder and Avinashiappa gounder jointly purchased the property and thereafter, in the year 1979, partition was effected, in which 'A' schedule property was allotted to Avinashiappa gounder and 'B' schedule was allotted to Ramasamy gounder. The plaintiff, who is the elder son of Avinashiappa

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gounder now disputing the share allotted to Ramasamy gounder stating that

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more extent was given, which came to his knowledge after UDR patta was issued in the year of 1984. Eventually, the suit was filed in the year 2009 nearly about 20 years later, the courts below rightly observed that after subdivision, if any objection on the part of the plaintiff, he would have raised the same before the revenue authority within a period of three years after the said subdivision. But, he has not raised any such objections, on the other hand, he sold portion of property after sub-division, which itself shows that he is also inclined to accept the subdivision. Therefore, he is estopped from his conduct and the same was rightly observed by the courts below, needs no interference of this court. So, the plaintiff had not proved his claim and it was rightly observed by the courts below. Hence, I do not find any merit in this Second Appeal as there is no substantial question of law involved for consideration. Accordingly, this Second Appeal is dismissed. No costs.

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30.01.2025

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rpp

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To Principal Subordinate Judge, Tiruppur.

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