Kumara Ravikumar Vs K. Chandrasekaran@Durai

[ Note: 3^rd Respondent is given up since she remained ex-parte and was not added as party (respondent) to the Appeal Suit in A.S.No.9 of 2017 on the file of the Subordinate Court, Sathyamangalam. Further, the appellant herein is not claiming any relief against the 3^rd respondent]

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S .A.No . 91 of 2 0 18

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PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated October 20, 2017 made in A.S.No.9 of 2017 by the Subordinate Court, Sathyamangalam, concurring with the Judgment and Decree dated October 17, 2016 made in O.S.No.207 of 2013 by the District Munsif, Sathyamangalam.

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For Appellant : Mr.A.Sundaravadhanan For Respondents 1&2 : Mr.S.Mukund Senior Counsel for M/s.I.C.Vasudevan

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J U D G M E N T

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This Second Appeal is directed against the Judgment and Decree dated October 20, 2017, passed in A.S.No.9 of 2017 by the 'Subordinate Court, Sathyamangalam' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated October 17, 2016 passed in O.S.No.207 of 2013 by the 'District Munsif, Sathyamangalam' ['Trial Court' for brevity] was confirmed.

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2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

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PLAINTIFFS' CASE

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3. Brief facts necessary for the disposing of this Second Appeal are as follows:

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3.1. The plaintiffs are husband and wife and they have been living in the farm house in the Suit Property. 1^st defendant is the younger brother of the 1^st plaintiff, while 2^nd defendant is his elder sister. The 1^st and 2^nd defendants own lands adjoining the Suit Property.

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3.2. The first plaintiff, the defendants 1 and 2 along with their

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mother and two other brothers divided their ancestral properties by a Registered Partition Deed dated June 18, 1983. Vide the said Partition Deed, first plaintiff was allotted ‘C’ Schedule Properties therein consisting of 4.41 Acres of land in Survey No.314, and the first defendant was allotted ‘D’ Schedule Properties therein, while their mother – Rajammal was given life estate over ‘A’ Schedule Properties therein which consists of 2 Acres of land in R.Survey No.314/3. According to the said Partition Deed, after Rajammal’s lifetime, first plaintiff and first defendant alone are entitled to ½ share each over the said ‘A’ Schedule Properties. Accordingly, post the lifetime of Rajammal, the plaintiff became entitled to 5.41 Acres (4.41 Acres + 1 Acre).

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3.3. Even though vide Partition Deed dated June 18, 1983 Rajammal was given life estate over 'A' Schedule property thereunder consisting of two Acre of land, she never took possession of the same.

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Instead, during the lifetime of Rajammal itself, first plaintiff and first defendant took possession of their respective shares in the said two Acre of land i.e., one Acre each and began enjoying it.

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3.4. The first plaintiff has settled in favour of second plaintiff/ his wife, an extent of 30 Cents along with common 1/7 share in well vide registered Settlement Deed dated December 22, 2005.

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3.5. Upon measuring the Suit Property, the first plaintiff

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learnt that he is in possession and enjoyment of only 5.19 Acres instead of 5.41 Acres, after leaving common Cart Track on all sides of his land. The first plaintiff has perfected title from 1983 to an extent of 5.19 Acres along with his wife.

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3.6. The defendants obstructed the plaintiffs from harvesting

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the ripen crop in the Suit Property and threatened them on September 10, 2012.

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3.7. Hence, the Suit for declaration of title, permanent

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injunction, demarcating the Suit Property (5.19 Acres), costs and other reliefs.

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DEFENDANTS’ CASE

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4. The defendants filed separate written statements denying the plaint averments. Sum and substance of their written statements is that the registered Settlement Deed dated December 22, 2005 is not valid and binding on the defendants for various reasons. The first plaintiff had no right to execute the same when he himself is not aware of the extent under his possession. Further, the mother – Rajammal was alive on the date of Settlement Deed and the first plaintiff was entitled to only 4.41 Acres. Further, the Settlement Deed is in respect of common 30 Cents and hence, the first plaintiff could not have handed over possession to second plaintiff. The first plaintiff refused to measure the properties and demarcate their respective boundaries, when called upon by the defendants. Boundaries are not yet ascertained. Further, the plaintiffs claim that they are in possession and enjoyment of 5.41 Acre but the Suit Property as described by the plaintiff in the Suit description of property is only 5.19 Acre. There is no information about the alleged remaining 22 Cents.

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4.1. 30 feet common Cart Track to the east of first

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defendant’s house is in existence. Further, another Cart Track formed in

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the first plaintiff’s land for the usage of the first defendant has been obliterated by the plaintiff in 2011. Furthermore, the Cart Track mentioned in the Partition Deed dated June 18, 1983 on the western boundary of Survey No.314 was never formed. The first plaintiff wilfully and wantonly disobeyed the recitals of the said Partition Deed. The first defendant’s wife passed away in 2008 and he has buried her body in the land under his possession and enjoyment which was allotted to him under the said Partition Deed, but the plaintiff purposely included that land in the plaint plan for the purpose of grabbing it from the first defendant. The description of property as well as the plaint plan is incorrect. In these circumstances, the relief of declaration of title and permanent injunction cannot be granted. Accordingly, they sought to dismiss the Suit.

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TRIAL COURT

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5. At trial, first plaintiff examined himself as P.W.1 and ExA.1 to Ex-A.14 were marked on the side of the plaintiffs. On the side of the defendants, first defendant was examined as D.W.1 and no documents were marked. Advocate-Commissioner's Report and Plan were marked as Ex-C.1 and Ex-C.2 and plan of the Surveyor was marked as Ex-C.3.

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6. Upon hearing both sides and considering the evidence

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available on record, the Trial Court concluded that as the extent and four boundaries are clearly described in the Suit description of property, there is no need to demarcate the Suit Property and ascertain them again. Accordingly, the Suit qua demarcation of Suit Property was dismissed by the Trial Court. Further, considering the available evidence, the Trial Court decreed the Suit qua declaration and permanent injunction.

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FIRST APPELLATE COURT

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7. Feeling aggrieved, the first defendant preferred an appeal before the First Appellate Court, which after hearing both sides and perusing the documents available on record, dismissed the appeal by concurring with the findings of the Trial Court.

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SECOND APPEAL

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8. Feeling aggrieved, the first defendant has preferred this Second Appeal which was admitted by this Court on December 1, 2023 on the following Substantial Question of Law:

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'(i) Whether the Courts below are justified in granting a decree for declaration and injunction, when the Cart Track mentioned by the plaintiff as a boundary for three sides of the Suit Property was not identified by the Surveyor in his plan Ex.C3?'

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ARGUMENTS:

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9. Mr.A.Sundaravadhanan, learned Counsel for the appellant/

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first defendant would argue that the Trial Court as well as the First Appellate Court failed to consider the recitals contained in Ex-A.2 – Partition Deed, which clearly lays down that after the demise of Rajammal, the northern half of ‘A’ Schedule Property under Ex-A.2 belongs to the plaintiff and the southern half thereof belongs to the first defendant. Further the plaint description of property is wrong as it includes the first defendant’s property, contrary to the terms of Ex-A.2 – Partition Deed. The Advocate Commissioner appointed by this Court filed Report and Plan which are also not in accordance with the terms contained in Ex-A.2 – Partition Deed. ‘A’ Schedule Properties under ExA.2 which was originally allotted to mother – Rajammal as life estate, after her demise, has to be divided as per the terms contained in Ex-A.2 and not otherwise. However, there was no such partition after her demise. Hence, the plaintiff ought to have filed a Suit for partition in respect of

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‘A’ Schedule Properties under Ex-A.2. Instead of partitioning the ‘A’ Schedule Properties under Ex-A.2 as per the terms contained therein after the demise of Rajammal, the plaintiff cannot arbitrarily claim his ½ share of ‘A’ Schedule Properties in the first defendant’s ‘D’ Schedule Properties for his convenience. The Trial Court and the First Appellate Court failed to appreciate the evidence in the right perspective and decreed the Suit. Accordingly, he would pray to allow the Second Appeal, set aside the Judgment and Decree of First Appellate Court and the Trial Court, and dismiss the Suit.

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10. Mr.S.Mukund, Senior Counsel for M/s.I.C.Vasudevan,

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learned Counsel on record for the respondents 1 and 2 / plaintiffs would argue that though the first plaintiff is entitled to an extent of 4.41 Acres, on the ground, the plaintiffs are enjoying only an extent of 4.19 Cents. The first plaintiff’s mother – Rajammal passed away. Hence, as per the terms of Ex-A.2 - Partition Deed, the plaintiff is entitled to the northern 1 Acre of properties allotted to Rajammal. Accordingly, the plaintiff is in possession and enjoyment of 5.19 Acres (4.19 Acre + 1 Acre). The Suit Property and its boundaries are identified by the Advocate Commissioner

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in Ex-C.1 and Ex-C.2 – Report and Plan and Ex-C.3 – Surveyor's plan. The First Appellate Court and the Trial Court appreciated the evidence in the right perspective and decreed the Suit. There is no reason to interfere with the same. Accordingly, he would pray to dismiss the Second Appeal, and confirm the Judgment and Decree of First Appellate Court and the Trial Court

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DISCUSSION:

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11. This Court has heard on either side and perused the materials available on record in light of the Substantial Question of Law.

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12. The first plaintiff is the elder brother of the first

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defendant. The second defendant is the elder sister of the first plaintiff and first defendant. The second plaintiff is the wife of first plaintiff. The first plaintiff and defendants 1 and 2 along with their mother – Rajammal and their two other brothers, entered into registered Partition Deed (ExA.2) in 1983, whereby Rajammal was given life estate over ‘A’ Schedule Properties therein and after her lifetime, the agricultural land therein alone was to be divided equally among the first plaintiff and the first defendant

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in a manner contiguous to their respective properties allotted under Ex-

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A.2 – Partition Deed. Further, the first plaintiff was allotted ‘C’ Schedule Properties therein, first defendant was allotted ‘D’ Schedule Properties therein and the second defendant was allotted ‘E’ Schedule Properties therein. Perusal of Ex-A.2 would further reveal that the pathway / Cart Track of 30 feet width situate on the eastern side of the properties covered thereunder was to be enjoyed in common inter alia by the plaintiff and the first defendant. It further reveals that the Cart Track situate towards the west of the properties covered thereunder shall be used in common by the plaintiff and the first defendant and that the plaintiff is to leave 15 feet Cart Track on the south - eastern boundary of ‘C’ Schedule Properties under Ex-A.2, for the first defendant to access the aforesaid 30 feet pathway / Cart Track through ‘A’ Schedule Properties and ‘E’ Schedule Properties therein. It is apposite to extract the terms of Ex-A.2 – Partition Deed hereunder:

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' . . . 1 yf;fkpl;lthpd; $Ptjpirf;Fg; gpd;dpl;L 3/ 4 yf;fkpl;lth;fs; mtuth; g';Ff;F neuhf cs;s g{kpia rhpghjpahf gphpj;Jf; bfhs;s ntz;oaJ vd;Wk; fPH;fz;l g{kpapd; fpHg[u vy;iyapy; cs;s 30 mo mfy jlj;ij ek;kpy; 1/ 3/ 4/ 6 yf;fkpl ; lth;fs; bghJtpy; mDgtpj;Jf;

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bfhs;s ntz;oabjd;Wk; fPH;fz;l g{kpapd; nky;g[u vy;iyapy; bghJthf cs;s tz;oj;jlj;ij ek;kpy; 3/ 4 yf;fkpl;lth;fs; cgnahfpj;Jf;bfhs;s ntz;oabjd;Wk; mij ahUk; jil bra;af;TlhJ vd;Wk; D b#oa{y; g';Ff;F C b#oa{y; jhuh; jdJ g';fpd; fpHg[u vy;iyapy; 15 mo mfyj;jpy; nkny brhd;d 30 mo mfy jlj;jpypUe;J – uh$k;khs; D b#oa{y; g';F tiu xU tz;oj;jlk; tpl;Ltpl ntz;oabjd;Wk; mij C b#oa{y;fhuh; ve;jtpjj;jpYk; jil bra;af;TlhJ vd;W . . .'

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13. Hence, the plaintiff has to divide his half share in the ‘A’ Schedule Properties under Ex-A.2 in the manner stated therein. To put it differently, he can claim only the northern portion of ‘A’ Schedule Properties under Ex-A.2 which is contiguous to his ‘C’ Schedule Properties. He cannot claim his half share over ‘A’ Schedule Properties under Ex-A.2, in the first defendant’s ‘D’ Schedule Properties.

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14. Moreover, in this case, Advocate Commissioner was appointed and he filed Report and Plan on April 24, 2015 marked as ExC.1 and Ex-C.2 respectively. And the Surveyor’s sketch was marked as

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Ex-C.3. On perusal of the above documents, it is seen that the Advocate Commissioner has perfectly identified the properties as per the allotment in Ex-A.2 – Partition Deed. He has also noted that though the plaintiff was allotted 4.41 Acre, in reality, he is possession and enjoyment of only about 4.19 Acres i.e., 2.55 Acre land and 10 Cents along with a Well in Survey No.314/3, and 1.50 Acre land and 6 Cents House in Survey No.314/1. The plaintiff also claims only 5.19 Acres including his half share in 2 Acre land in ‘A’ Schedule Properties under Ex-A.2. As per ExC.1, Ex-C.2 and Ex-C.3, the first defendant is in possession and enjoyment of the 3.50 Acre, which is in tune with the allotment under ExA.2. However, the western side Cart Track mentioned in Ex-A.2 – Partition Deed is not in existence and hence, it has to be formed as per Ex-A.2.

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15. The Report of the Advocate Commissioner appointed by this Court is not in tune with the manner of allotment recited in Ex-A.2 – Partition Deed and hence, it deserves to be rejected.

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16. There is no need to file a separate Suit for dividing the ‘A’

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Schedule Properties, as they have already been clearly divided in Ex-A.2– Partition Deed. Failing to appreciate the above facts, the Trial Court erred

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in relying on the Suit description of property, which is described incorrectly, and including the first defendant’s ‘D’ Schedule Properties while partitioning the first plaintiff’s half share in his mother’s life estate. The First Appellate Court also failed to consider the above aspects and erred in dismissing the appeal by concurring with the findings of the Trial Court. Substantial Question of Law is answered accordingly.

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17. That apart, the first defendant cannot question the

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registered Settlement Deed executed by the first plaintiff in favour of his wife / second plaintiff for the reason that it was executed in respect of his shares allotted to him in Ex-A.2 – Partition Deed. It does not affect the first defendant’s rights in any manner. Moreso, the first defendant is not claiming any right through the 2^nd plaintiff and the 1^st defendant cannot question the action of the 1^st plaintiff in respect of his properties i.e., 'C' Schedule properties allotted under Ex-A.2 – Partition Deed. The validity of the said registered Settlement Deed need not be determined in this case as it does not impact this case in any manner.

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CONCLUSION:

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18. Resultantly, in the facts and circumstances of this case,

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and in the interest of justice, the Second Appeal is partly allowed and a preliminary Decree is passed in the following terms:

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(a) The first plaintiff is entitled to partition ‘A’ Schedule Properties under Ex-A.2 – Partition Deed as per the terms contained therein;

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(b) The western side Cart Track described in Ex-A.2 has to be formed within three months from the date of this Judgment;

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(c) The East – West Cart Track described in Ex-A.2 should not be obliterated by the plaintiffs;

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(d) Report and Plan of the Advocate Commissioner [Ex-C.1 and Ex-C.2] along with the Surveyor’s Plan [Ex-C.3] shall form a part of the Decree;

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(e) Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is closed.

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08 / 01 / 2025 Index : Yes / No Speaking Order : Yes / No Neutral Citation : Yes / No TK

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R. SAKTHIVEL, J.

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TK