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2012 DIGILAW 2785 (MAD)

P. Arumugam v. P. Kannappa Naicker

2012-07-03

T.RAJA

body2012
Judgment :- 1. The present Second Appeal has been preferred by the unsuccessful plaintiff challenging the concurrent finding of both the Courts below. 2. The brief facts, which led to the filing of this second appeal, are as follows: (i)The plaintiff filed a suit of partition of 'A' and 'B' schedule mentioned properties into three equal shares and to allot and deliver the possession of one such share to him, if needed, by appointing a Commissioner for the said purpose and also to pay the costs of the suit. (ii)The plaintiff pleaded that the first defendant is the eldest brother. The plaintiff, the first defendant and one (late) Ramasamy are brothers and they were living together along with their mother Kannammal by constituting the undivided joint Hindu family. The first defendant being the eldest member of the joint family was looking after the affairs of the joint Hindu family and he started carrying on the trades of lathe work, oil engine repair, rewinding, grill work, rice huller repair, decodicater repair, overhauling of boaring machine etc. and with the incomes from the joint family trades, several properties were acquired in the name of the first defendant. On some occasions, by using the joint family income, the first defendant purchased some of the properties in the name of the plaintiff and also in the name of (late) Ramasamy. They also purchased one tiled house in the name of the first defendant in the year 1958 at Door No.16, Kanar Street, Arcot. Later on, by using the joint proceeds, the joint family purchased 2.30 cents in the name of the first defendant under the sale deed dated 20.4.1964, Ex.A.8 for Rs.2,500/-and also acquired 2.07 cents in Thazhanur village. (iii)Again, the joint family also purchased 0.66 cents in the year 1973 in Survey No.108/2, one vacant site at Door No.17A, Sundara Mudali Street and also purchased another vacant site at Door No.16-A, Sundara Mudali Street, Arcot and put up terraced house in both Door Nos.17A and 16A, Sundara Mudali Street, Arcot. Like wise, the joint family also put up construction for workshop measuring to an extent of 22 feet East to West and 45 feet North to South at Door No.20, Walaja Road, Sholinghur. (iv)The joint family also put up two more shops (terraced) in Door Nos.48 and 49, Arni Road, Arcot. Like wise, the joint family also put up construction for workshop measuring to an extent of 22 feet East to West and 45 feet North to South at Door No.20, Walaja Road, Sholinghur. (iv)The joint family also put up two more shops (terraced) in Door Nos.48 and 49, Arni Road, Arcot. They also purchased 3 acres 78 cents of land in Vilapakkam village under the registered sale deed dated 1.12.1975 for Rs.13,500/-. Later, the joint family purchased 2 acres 58 cents in the same vllage. All these properties have been treated and enjoyed as joint family properties only. Unfortunately, dispute arose among the womanfolk in the joint family. As a result, the plaintiff came to reside at Door No.17-A, Sundara Mudali Street, Arcot, the first defendant continued to reside in Door No.16, Kanar Stret, Arcot and the younger brother (late) Ramasamy came to reside at door No.16-A, Sundara Mudali Street, Arcot. However, the joint family trade and agricultural operations continued in the joint family as it was before, as there was no division. Subsequently, when the plaintiff requested for partition, the same was not accepted by the first defendant. Therefore, the plaintiff was constrained to file a suit for partition praying for direction to divide 'A' and 'B' schedule properties mentioned in the plaint into three equal shares and to allot and deliver possession of one such share to the plaintiff if necessary, by appointing Advocate Commissioner therefor. 3. A detailed written statement was filed on behalf of the first respondent and the same was adopted by the defendants 2, 3, 5 and 10. The eighth defendant also filed another written statement and the same was adopted by the seventh defendant. (i) A specific plea was taken by the defendants 1, 2, 3, 5 and 10 in their written statement that there was no joint family property at all. (ii) It was stated in the written statement that the plaintiff and (late ) Ramasamy neither worked together nor earned any amount. The plaintiff at no point of time contributed anything to the joint family as pleaded in the plaint. (ii) It was stated in the written statement that the plaintiff and (late ) Ramasamy neither worked together nor earned any amount. The plaintiff at no point of time contributed anything to the joint family as pleaded in the plaint. The first defendant alone with his own funds earned by him in the Tea Shop and lathe work, purchased all the properties by his own effort and therefore, the properties mentioned in the suit schedules were purchased with his own funds and all the properties in the name of the first defendant are self acquired properties. Neither the plaintiff nor the brother (late) Ramasamy worked and contributed to the joint family. Hence, the suit filed for partition is not at all maintainable and the same may be dismissed. (iii) The written statement filed on behalf of the seventh and eighth defendants stated that the plaintiff Arumugam, the first defendant Kannappa Naicker and (late) P.Ramasamy entered into an oral partition in the year 1980 and the properties were also sub-divided and they were in possession and enjoyment of their respective shares. Separate pattas were also obtained by them in respect of their properties. The first defendant sold the first and third items of the properties, which fell to his share, to the seventh defendant under Exs.B.4 and B.5 the registered sale deeds dated 3.6.1994 and 4.9.1995 respectively. Similarly, the second item of the properties of (late) Ramasamy was also sold to the seventh defendant under Ex.B.6, the registered sale deed dated 3.6.1994. Now, the seventh defendant is in possession and enjoyment of Item Nos.1, 2 and 3 of the properties. As per the oral partition, the plaintiff obtained his share under Survey Nos.2/8C – 0.59.5, S.No.9G – 0.09.0 and S.No.9 I – 0.35.5 and patta was also obtained by him in respect of his share. In the year 1980, the plaintiff entered into a sale agreement dated 2.6.1994, Ex.B.3 to sell his above share of the properties to the eighth defendant for a total sale consideration of Rs.1,11,800/- and received an advanced amount of Rs.20,000/- from him. In pursuance of the said sale agreement, he handed over the possession of the lands to the eighth defendant. In view of the above, the plaintiff is estopped from claiming partition of the suit properties. Hence, the suit filed by the plaintiff has to be dismissed. In pursuance of the said sale agreement, he handed over the possession of the lands to the eighth defendant. In view of the above, the plaintiff is estopped from claiming partition of the suit properties. Hence, the suit filed by the plaintiff has to be dismissed. (iv) Under these circumstances, the learned trial Court has taken up the matter for trial and framed five issues. After considering the evidence of P.W.1 to P.W.4 and the documents namely Ex.A.1 to A.6 produced on the side of the plaintiff and also taking into account the evidence of D.W.1 to D.W.3 and the documents namely, Ex.B.1 to B.9 on the side of the defendants, the learned trial Court came to the conclusion that the plaintiff has miserably failed to establish that he was a joint family nucleus to ask for partition of 'A' and 'B' schedule properties and dismissed the suit. Aggrieved by the judgment and decree passed by the trial Court, when an appeal was filed, the first appellate Court has also dismissed the suit rendering a separate finding that the properties purchased in the name of the first defendant Kannappan are all his self acquired properties and on that basis, the appellate Court has held that though the trial Court was not correct in coming to the conclusion that there was an oral partition took place between the brothers and the properties were allotted to Arumugam, finally it came to the conclusion that the suit properties are self acquired properties of Kannappan and he has every right to dispose of the properties according to his own whims and fancies. On that basis, the first appellate Court has concluded that the plaintiff, Arumugam, who is the appellant herein, is not entitled to any share in the suit properties and dismissed the appeal. As against the concurrent judgment and decree passed by the first appellate Court, this second appeal has been preferred by the plaintiff, the appellant herein. 4. Heard Ms.A.L.Gandhimathi, learned senior counsel appearing for the appellant, Mr.Margabandu, learned counsel appearing for the first respondent and Mr.T.P.Prabhakaran, learned counsel appearing for the respondents 7 and 8. 5. As against the concurrent judgment and decree passed by the first appellate Court, this second appeal has been preferred by the plaintiff, the appellant herein. 4. Heard Ms.A.L.Gandhimathi, learned senior counsel appearing for the appellant, Mr.Margabandu, learned counsel appearing for the first respondent and Mr.T.P.Prabhakaran, learned counsel appearing for the respondents 7 and 8. 5. At the time of admission of the above second appeal, this Court formulated the following substantial questions of law: "1.Whether the lower appellate Court was correct in reversing the finding of the trial Court without an appeal being filed by the defendants under Order 41 Rule 22 CPC? 2. Whether the trial Court was correct in finding that there was an oral partition between the parties without any pleading or evidence to that effect?" 6. The learned counsel appearing for the appellant would submit that the trial Court and the first appellate Court have committed serious mistake and miserably failed to divide 'A' and 'B' schedule properties into three equal shares and to allot and deliver the possession of one such share to the plaintiff. 7. The learned counsel appearing for the appellant would further submit that there was no pleading in the written statement filed by the defendants that there was an oral partition. But, the trial Court has erroneously held that there was a oral partition and after the oral partition, the properties were allotted to the plaintiff/appellant, first defendant/first respondent and (late) Ramasamy and hence, the suit filed for partition was not maintainable. 8. In reply to the above said submission, the learned counsel for the respondents would contend that the first defendant sold his share i.e., 1st and 3rd item of the suit properties to the seventh defendant under Exs.B.4 and B.5, the registered sale deeds dated 3.6.1994 and 4.9.1995 and (late) Ramasamy also sold item No.2 of the suit properties to the seventh defendant under Ex.B.6, the registered sale deed dated 3.6.1994. Likewise, after the oral partition, the Arumugam, the appellant/plaintiff entered into sale agreement dated 3.6.1994 Ex.B.3 in which, it is specifically mentioned that before selling the properties to the eighth defendant, the said property was allotted to the share of the plaintiff as per the oral partition and hence, it is not open to the plaintiff to ask for one another partition and the same is not permissible. 9. 9. He would further contend that it is a settled law that a person/plaintiff who is asking for partition, is bound to prove what are the properties purchased in the name of the first defendant as Karta of Joint family. But, either before the trial Court or before the first appellate Court, the plaintiff has not produced even a single iota of evidence to support his case that 'A' and 'B' schedule properties were purchased from joint family income. 10. When the plaintiff/appellant asked for partition and allotment of 1/3 share from 'A' and 'B' Schedule properties, the plaintiff -P.Arumugam himself in para 6 of the plaint admitted that in the year 1984, the joint family trade and workshop with lathe were separated by the consent of the joint family members and as a result of the partition, the plaintiff was also allotted shop No.49 at Arni Road, Arcot and the first defendant was allotted shop No.48 in the same Arni Road, Arcot and the younger brother Ramasamy was allotted Sri Venkateswara lathe works at Door No.20, Waaja Road, Sholinghur. On that basis, he further admitted that the house properties and joint family trades were divided among brothers. Having admitted that there was already a partition and properties were allotted to all the brothers and subsequently when the defendant also has proved by showing a registered sale deed dated 3.6.94, Ex.B1 by which the very plaintiff-Arumugam has sold some of the properties to D8, it is absolutely falsehood for the plaintiff to again ask for second partition on the ground that the agricultural lands have not been divided. Therefore, finding fault with the approach of the learned appellate court and also finding fault with the trial court that the trial court without there being any pleading or evidence to say that there was oral partition dismissing the suit was a grave error is not only unacceptable, the said argument is totally against the plaintiff’s own pleadings in paragraph 6 of the plaint. Therefore, answering the second substantial question of law against the appellant, the Second Appeal is liable to be dismissed. 11. Therefore, answering the second substantial question of law against the appellant, the Second Appeal is liable to be dismissed. 11. That apart, on a perusal of oral and documentary evidence produced by both parties, it is concluded that the properties, which were purchased in the name of Kannappa Naicker, the first respondent/first defendant are his self acquired properties, this Court sitting under Section 100 of the Code of Civil Procedure, exercising limited authority and jurisdiction cannot once again re-appreciate or re-assess the entire evidence. 12. Since the first substantial question of law raised by the appellant/plaintiff as to whether the lower appellate Court was correct in reversing the finding of the trial Court without an appeal being filed by the defendants under Order 41 Rule 22 of the Code of Civil Procedure was not pressed by the learned counsel for the appellant, the second substantial question of law is answered against the appellant. Therefore, as held above, when there was an oral partition in the year 1984 between the parties, this Court has no hesitation to confirm the judgment and decree passed by both the Courts below and hence, the second appeal fails and the same is dismissed. There is no order as to costs.