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2003 DIGILAW 387 (MAD)

Selvaraju v. Govinda Padayachi (died) and others

2003-03-10

A.S.VENKATACHALA MOORTHY

body2003
JUDGMENT: The plaintiff, who lost before the lower appellate Court is the appellant. The admitted facts are that the plaintiff is the son of the first defendant and the second defendant is the first defendant’s cousin. The first defendant’s father is one Samburaya Padaiyachi and the second defendant’s father is Nangoor Padaiyachi. While it is the case of the plaintiff that there was an oral partition between the father of the first defendant and second defendant, the case of the second defendant is that though the properties were partitioned about 15 years prior to the filing of the suit, the same was not measured and the partition was made only roughly. There is no dispute between the parties that on 1.3.1979, the first and second defendants entered into a registered partition as per Ex.B-1. 2. The case of the plaintiff is that his father, the first defendant, has not been worldly-wise and a dependent on the second defendant and taking advantage of that, the second defendant prevailed in March, 1979 unnecessarily detrimental to the interest of the plaintiff’s family. It is the further case of the plaintiff that the partition entered into between the first and second defendants is not be a valid one and in any event, it will not bind the plaintiff and his family. 3. Per contra, the case of the second defendant is that in view the fact that the oral partition in the year 1966 was not complete and a well defined one, there used to be frequent quarrels and that only prompted the parties to entered into the registered partition under Ex.B-1. 4. The short question is as to whether the plaintiff has proved his case. To substantiate his case, the plaintiff got himself examined and marked two exhibits. At the outset, it has to be pointed out that the first defendant has conveniently remained ex parte. In cross-examination the plaintiff would depose that he did not know as to whether his uncle Damodara Moopar was a witness to Ex.B-1. The plaintiff has clearly admitted that he and his father were residing in the same house together and would conveniently say that he did not ask his father as to why he entered into the partition Ex.B-1. As already stated, the first defendant has not appeared before the Court nor filed any written statement. The plaintiff has clearly admitted that he and his father were residing in the same house together and would conveniently say that he did not ask his father as to why he entered into the partition Ex.B-1. As already stated, the first defendant has not appeared before the Court nor filed any written statement. The lower appellate Court has rightly given a factual finding that the plaintiff has been set up only by the first defendant to file the suit for declaration and for partition. The plaintiff has not let in relevant oral and documentary evidence to substantiate his case. The finding of the lower appellate Court being a factual one based on acceptable material and reasons no interference is called for. 5. In this view of the matter, the second appeal is dismissed. No costs.