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2010 DIGILAW 5104 (MAD)

G. Murugan v. G. Thangaraj

2010-11-22

M.DURAISWAMY

body2010
Judgment :- 1. The above Second Appeal arises against the judgment and decree in A.S. No.23 of 2007 on the file of Principal Subordinate Court, Gobichettipalayam confirming the Judgment and Decree in O.S. No.540 of 2004 on the file of District Munsif Court, Gobichettipalayam. 2. The Plaintiff in the Suit is the Appellant in the above Second Appeal and the Respondent was the Defendant in the Suit. 3. The Plaintiff filed the Suit in O.S. No. 540 of 2004 on the file of District Munsif Court, Gobichettipalayam for declaration, injunction and alternatively for partition. 4. The brief case of the Plaintiff in the Suit is as follows: (i) According to the Plaintiff, the Plaintiff and the Defendant are brothers. The Suit ‘B’ schedule property originally belonged to their father Gurunathan by a Patta dated 13.3.1974. In the month of May 1985, the said Gurunathan by a oral partition and family arrangement, divided the ‘B’ schedule property measuring 5 cents and allotted 2.5 cents to the Plaintiff and handed over the possession to him. The said 2.5 cents has been mentioned as ‘A’ schedule property in the plaint. On the north of ‘A’ Schedule property, the said Gurunathan allotted 2.5 cents to the Defendant. The Plaintiff constructed a house in the year 1985 in the ‘A’ schedule property allotted to him. The Defendant also constructed a house in the land allotted to him and residing in the said house. The Plaintiffs mother died 30 years ago. On 17.8.1994, the Plaintiff’s father Gurunathan had died. (ii) According to the Plaintiff, the Defendant have no right in respect of ‘A’ schedule property. The Plaintiff is in possession and enjoyment of the ‘A’ schedule property for more than 19 years. The Plaintiff is not claiming any right in respect of the land allotted to the Defendant on the north of the ‘A’ schedule property. Since the Plaintiff refused to sell the ‘A’ schedule property to the Defendant, the Defendant tried to dispossess the Plaintiff from the ‘A’ schedule property. In these circumstances, the Plaintiff filed the Suit. 5. The brief case of the Defendant in the Suit is as follows: According to the Defendant, the land in possession of the Defendant belong to the Government. In the said land, either the Plaintiff or his father Gurunathan have no right. The Defendant constructed a house in the said land. In these circumstances, the Plaintiff filed the Suit. 5. The brief case of the Defendant in the Suit is as follows: According to the Defendant, the land in possession of the Defendant belong to the Government. In the said land, either the Plaintiff or his father Gurunathan have no right. The Defendant constructed a house in the said land. There was no oral partition as alleged by the Plaintiff. The Plaintiff was not allotted with 2.5 cents as averred in the Plaint. The Plaintiff was residing for Kounadampadi for 20 years and about 4 or 5 years, he returned to Gobichettipalayam. Since he had no house to reside, the Defendant allowed the Plaintiff to reside in the Suit house. The Plaintiff have no right in respect of ‘B’ Schedule property. In these circumstances, the Defendant prayed for dismissal of the Suit. 6. Before the Trial Court, on the side the Plaintiff, 3 witnesses were examined and 12 documents, Exs.A-1 to A-12 were marked and on the side of the Defendant, 2 witnesses were examined and 5 documents, Exs.B-1 to B-5 were marked. The Advocate Commissioner’s Report and Plan were marked as Exs.C-1 and C-2. Ex.x-1 was marked through the Village Administrative Officer, P.W.3. 7. The Trial Court after taking into consideration, the oral and documentary evidences of both sides, dismissed the Suit. 8. Aggrieved over the judgment and decree of the Trial Court, the Plaintiff preferred Appeal in A.S.No.23 of 2007 on the file of Principal Subordinate Court, Gobichettipalayam and the Lower Appellate Court also confirmed the judgment and decree of the Trial Court. 9. Aggrieved over the judgments and decrees of the Courts below, the Plaintiff has filed the above Second Appeal. 10. Heard Mr.P. Valliappan, learned Counsel appearing for the Appellant and Mr. A.K. Kumarasamy, learned Counsel appearing for the Respondent. 11. The Appellant has raised the following substantial questions of law in the above Second Appeal: “(a) When the Appellant has proved his right over the Suit ‘A’ Schedule property by producing Exs.A-1 to A-12 and examining P.Ws.2 & 3 independent witnesses, whether the Courts below are correct in law in non suiting the Appellant? 11. The Appellant has raised the following substantial questions of law in the above Second Appeal: “(a) When the Appellant has proved his right over the Suit ‘A’ Schedule property by producing Exs.A-1 to A-12 and examining P.Ws.2 & 3 independent witnesses, whether the Courts below are correct in law in non suiting the Appellant? (b) When Ex.X-1 clearly proves the fact that the Patta was granted in respect of the suit property to the father of the Appellant, whether the Courts below are correct in law in holding that the Appellant had not established as to how the suit property originally belonged to his father? (c) Whether the Courts below are correct in law in placing reliance upon Exs.B-1 to B-3, Revenue Records to hold that the suit property belongs to the Respondent? (d) Whether Courts below are correct in law in holding that the relief of injunction cannot be granted against the Respondent, especially when the Appellant is entitled to the Suit ‘A’ schedule property? (e) Whether the Courts below are correct in law in disbelieving the factum or oral partition, which is recognized in Hindu law?” 12. On a careful consideration of the materials available on record and the submissions made by both the Counsels, it could be seen that there is no dispute that, the Appellant and Respondent are brothers and they are the sons of one Gurunathan. According to the Appellant, there was oral partition in the year 1985 and out of the total extent of 5 cents, 2.5 cents was allotted to him and the remaining 2.5 cents was allotted to his brother, the Respondent herein. 13. According to the Appellant, the land allotted to him is the ‘A’ schedule property. According to the Respondent, the ‘B’ schedule property measuring an extent of 5 cents belong to the Government and neither the Appellant nor his father Gurunathan had any right or title in respect of the ‘B’ schedule property measuring 5 cents. 14. According to the Respondent, the Appellant was away from the village for more than 20 years staying at Kounadampadi and returned about 4 or 5 years prior to the filing of the Suit. Since the Appellant had no residence to live, The Respondent permitted him to stay in his house. According to the Respondent, the Appellant is only a permissive occupant of the suit property. 15. Since the Appellant had no residence to live, The Respondent permitted him to stay in his house. According to the Respondent, the Appellant is only a permissive occupant of the suit property. 15. It is not in dispute that Gurunathan have 3 other legal heirs. However, they were not made as parties in the Suit. The Courts below rightly found that the Suit is bad for nonjoinder of necessary parties, since the Appellant has filed the Suit alternatively for partition. 16. Though the Appellant had contended that Patta was issued in favour of his father Gurunathan, from Ex.B-1 Patta, it could be seen that the said Patta was issued in favour of the Respondent on 10.6.1993. The father of the Appellant and Respondent namely, Gurunathan died on 15.8.1994. Therefore, it is clear that during the life time of their father itself, Patta was issued in favour of the Respondent under Ex.B-1 dated 10.6.1993. 17. With regard to the oral partition pleaded by the Appellant, P.W.2 was examined to speak about the alleged oral partition. However, the Courts below rejected the evidence of P.W.2 on the ground that he is an interested witness of the Appellant/Plaintiff. Apart from P.W.2, the Appellant has not examined any other witness to prove the plea of oral partition. Therefore, the Courts below are right in rejecting the oral partition pleaded by the Appellant. 18. The learned Counsel for the Appellant relied upon the following judgments, in support of his submissions: (i) Rame gowda (D) by L.Rs v. M. Varadappa Naidu (D) by L.Rs. and another, AIR 2004 SC 4609 , wherein, the Apex Court held that when the Plaintiff is in settled possession, he is entitiled to protect his possession. (ii) Krishna Ram Mahale (D) by his L.Rs., v. Shoba Venkat Rao, AIR 1989 SC 2097 , wherein, the Apex Court held that even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. (iii) Angammal and others v. Komara Gounder and others, 2002 (1) CTC 472 , wherein, this Court held that the Court can mould the relief provided such relief is not inconsistent with pleadings. (iii) Angammal and others v. Komara Gounder and others, 2002 (1) CTC 472 , wherein, this Court held that the Court can mould the relief provided such relief is not inconsistent with pleadings. The claim cannot be thrown out on merits due to technicality of pleading and the Court can always grant lesser relief than what is claimed to which the Plaintiff is entitled. 19. It is true that the Respondent/ Defendant himself admitted in the Written Statement that the Appellant is in possession of the property. Applying the principles laid down in the above judgments to the facts and circumstances of the present case, it could be seen that the Appellant is not in possession of the suit property. Though according to the Respondent, the Appellant is only a permissive occupant of ‘A’ schedule property, the Courts below ought to have granted lesser relief of permanent injunction. However, the Courts below dismissed the Suit in entirety. Even though, the Respondent/Defendant admitted the possession of the Appellant /Plaintiff, the Respondent is entitled to recover the possession from the Appellant/Plaintiff only by due process of law. The Appellant is entitled to protect his possession. The Courts below ought to have decreed the Suit in respect of the relief of injunction. Therefore, the judgments and decrees of Courts below are liable to be modified. 20. In these circumstances, the judgments and decrees of the Courts below are modified by granting the relief of permanent injunction in favour of the Appellant/Plaintiff. In other aspects, the judgments and decrees of the Courts below are confirmed. 21. With the above modification, the above Second Appeal is partly allowed. Consequently, connected Miscellaneous Petition is closed. However, there shall be no order as to costs.