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2012 DIGILAW 2474 (MAD)

A. Devi v. M. Joghee (died)

2012-06-15

T.RAJA

body2012
Judgment :- 1. The present second appeal has been brought by the unsuccessful plaintiffs seeking interference with the concurrent findings of both the courts below. 2. The brief facts leading to filing the present second appeal is as follows : The appellants/plaintiffs filed a suit on the file of the learned Subordinate Judge, Nilgiris at Udhagamandalam praying a decree for partition of suit property covered in Survey Nos.251/2A, 251/2B, 251/2C, 251/2D, 251/2E and 251/2F comprising an extent of 23.28acres of lands and also partition of another land covered in Survey Nos.261/1, 261/2, 261/3, 261/4 and 261/5 having an extent of 9.21 acres and to pass judgment and preliminary decree for the land comprised an extent of 11.91 acres to the plaintiffs in S.No.251 situated in Ithalar Village and also judgment and decree to the extent of 4.60acres in S.No. 261 with consequential prayer to appoint a Court commissioner to effect partition and allot the shares to the plaintiffs for which the plaintiff's are entitled in terms of the preliminary decree. 3. The suit prayer was opposed by the defendant by filing a detailed written statement. Though, the defendants have taken several objections, one of the objections is that the plaintiffs/appellants were not in joint possession of the suit property or in any partition thereof. The plaintiffs has not paid the appropriate court fee as per Section 37(1) of the Court fees Act. It was also the case of the defendants/respondents that the plaintiffs/appellants have not placed on record the true facts regarding the devolution of title, ancestry and succession in relation to the suit properties. Therefore, it was pleaded the claim for partition cannot be considered. Under these circumstances, the trial court took up the suit for trial after framing the following issues : 1. Whether the Court fee paid is not correct? 2. Whether the plaintiff's are in joint possession of the suit property? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the plaintiffs are entitled to partition? and 5. To what relief if any the plaintiffs are entitled? The additional issue framed on 15.03.2004. 6. Whether the newly added defendant Nos.73 to 88 are entitled to any share in the suit property? If so, to what extent? 4. 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the plaintiffs are entitled to partition? and 5. To what relief if any the plaintiffs are entitled? The additional issue framed on 15.03.2004. 6. Whether the newly added defendant Nos.73 to 88 are entitled to any share in the suit property? If so, to what extent? 4. By taking on record, the evidence adduced on both sides, the trial Court finally came to a conclusion that the primary ingredients of ownership and common enjoyment have not been proved by the plaintiffs so as to consider the claim for partition of the suit property in S.Nos.251 and 261, on that basis, the trial Court held that the plaintiffs/appellants are not entitled to any relief in the suit except the relief for declaration of title. Accordingly, the trial court considering the nature of the reliefs raised by the parties, granting liberty to file fresh suit for declaration, refused the relief for partition. 5. Aggrieved by the said judgment and decree passed by the trial Court, the matter was taken up before the first appellate court. The first appellate court after considering the arguments advanced by both sides, including the claim made by the plaintiffs/appellant and the objections placed against the claim of plaintiffs/appellants that the plaintiffs have not proved that they are in joint possession/joint enjoyment of the suit property and further holding that they also miserably failed to prove the actual extent of the suit property, confirmed the findings and conclusion reached by the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of both the courts below, the present second appeal has been filed before this Court. 6. While admitting the second appeal, this court framed the following substantial questions of law for consideration : a) Whether the Courts below have properly appreciated the law relating to joint possession in a suit for partition, particularly when the property in question is governed by a joint patta? b) Whether the Courts below have properly appreciated the prayer for preliminary decree for partition, which means that the title is going to be declared by way of a preliminary decree, declaring the title to a particular share or particular portion in a joint property? b) Whether the Courts below have properly appreciated the prayer for preliminary decree for partition, which means that the title is going to be declared by way of a preliminary decree, declaring the title to a particular share or particular portion in a joint property? c) Whether the trial Court is right in law in directing the plaintiffs to file a suit for declaration of title and possession or declaration and injunction on the same cause of action when that can be done in this suit itself while considering the prayer for preliminary decree? d) Whether the Courts below are right in law in giving a finding that for patta No.108 all the three sons of Gonnathathan are Co-pattadars when admittedly no patta has been marked as an Exhibit? e) Whether the Courts below have properly appreciated the law relating to insolvency of an individual and its impact on the share in the joint family properties, particularly when the other coparceners are not party to the proceedings? f) Whether the Courts below have properly appreciated the scope of section 90 if the Indian Evidence Act? g) Whether the Courts below are right in relying upon Ex.B2 when the defendants have not proved that Selai Gowder, the vendor under Ex.B2 had any title to deal with the property covered by Ex.B2? h) Whether the Courts below have properly appreciated the law relating to proof of joint possession and in the case of joint possession, there is no question of mentioning any extent by metes and bounds because everything is remaining joint and even the persons dealing with the properties have dealt with undivided share and not properties by metes and bounds because admittedly there was no partition? i) Whether the Courts below have properly appreciated the law of Ownership and joint ownership in the sense that even any alienee from a Co-owner buying undivided share will be deemed to be in joint possession and he cannot claim separate possession and the remedy is only to sue for partition. 7. Heard both sides. 8. The plaintiffs having filed the suit for partition of huge extent of lands covered in S.No.251 to an extent of 23.28 acres and S.No.261 to an extent of 9.21 acres was unable to satisfy both the courts below, regarding the basic and vital issue as to whether the plaintiffs are the co-owners or owners of the suit property. 8. The plaintiffs having filed the suit for partition of huge extent of lands covered in S.No.251 to an extent of 23.28 acres and S.No.261 to an extent of 9.21 acres was unable to satisfy both the courts below, regarding the basic and vital issue as to whether the plaintiffs are the co-owners or owners of the suit property. It is well settled that a person, who is seeking partition of his family property, is required to establish the basic ingredient that he is legally entitled to inherit the property, to which, he is asking for partition. On this aspect the judgment of both the courts below have repeatedly held that the plaintiffs have not proved that they are in possession or joint possession of the suit property. 9. In fact, it is necessary for the plaintiffs to prove that he is in joint possession of the suit property by producing all necessary evidence to hold that they are entitled to claim decree or judgment for partition. The only thing, which is required in the eye of law is that the plaintiffs should prove on the basis of producing documentary evidence that they are also co-owner of the suit property for partition. But, both the Courts below have not satisfied with the co-ownership of the plaintiffs, hence, they rightly came to the conclusion that the plaintiffs/appellants are not entitled for declaration and injunction or declaration and delivery of possession and such a findings of fact reached by both the courts below, in my considered view, cannot be found fault with. When the plaintiff have miserably failed to prove the factual aspects as to whether they are owners or co-owners of the suit properties by answering the first substantial questions of law against the appellant, the further consideration of the other questions of law are inconsequential to this appeal, therefore, for the reasons that they are given liberty to file a suit for declaration of title in their own interest other questions need not be answered as it would have a bearing in the subsequent suit. As rightly found by the trial court as confirmed by the first appellate court, liberty given to the plaintiffs to file the suit for declaration of title is hereby affirmed and the plaintiffs/appellants have to file fresh suit for declaration of suit property. 10. As rightly found by the trial court as confirmed by the first appellate court, liberty given to the plaintiffs to file the suit for declaration of title is hereby affirmed and the plaintiffs/appellants have to file fresh suit for declaration of suit property. 10. With this observation, the findings of both the Courts below are hereby affirmed and the second is dismissed. No costs. Consequently, connected miscellaneous petition is closed.