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2013 DIGILAW 2770 (MAD)

Balasubramania Nainar v. Ashok Kumar

2013-07-31

R.S.RAMANATHAN

body2013
Judgment : 1. The plaintiff in O.S.No.45 of 1988 on the file of the Sub Court, Villupuram is the appellant. 2. The plaintiff filed the suit for partition of his half share and the suit was dismissed and aggrieved by the same, this appeal is filed. The case of the plaintiff as seen from the plaint is as follows:- The suit properties and other properties originally belonged to Subroya Nainar and he had two sons, Irusappa Nainar and Ramasami Nainar and the plaintiff is the son of Irusappa Nainar. The first defendant is the son of Ramasami Nainar. On 6.12.1950, there was a partition between the plaintiff and Ramasami Nainar evidenced by two unregistered partition deeds and in the partition deeds, 'A' schedule properties mentioned therein were allotted to the share of Ramasami Nainar and 'B' schedule property was allotted to the share of the plaintiff and 'C' schedule property was kept in common. As per the partition list, the common debts were to be discharged by the sale of 'C' schedule properties. However, 'C' schedule properties were to be utilized for performing Dharmams. The plaintiff's uncle Ramasami Nainar was managing 'C' schedule properties as he was the seniormost member of the family and from the income from 'C' schedule properties mentioned in the partition list, the suit properties were purchased for the purpose of constructing a school and after purchase of the land, the plaintiff and his uncle Ramasami Nainar constructed a school by name 'Raman Higher Secondary School' and it was managed by the plaintiff and his uncle. A trust deed dated 15.4.1959 was also executed by the plaintiff and his uncle Ramasami Nainar for the purpose of running the school and the school was running till 1986 and as the buildings became dilapidated, the school was taken over by the Government and the area kept by the school is having an extent of 5 acres 59 cents and it remained vacant and that is the suit property mentioned in 'A' schedule and the other properties which are mentioned in 'C' schedule as per the earlier partition list and enjoyed by the plaintiff and his uncle Ramasami Nainar were acquired by the Government and the compensation was shared by them. Ramasami Nainar died in the year 1972 and therefore, the plaintiff and the first defendant are each entitled to half share. Ramasami Nainar died in the year 1972 and therefore, the plaintiff and the first defendant are each entitled to half share. However, the first defendant plotted the suit A schedule property and sold various plots in favour of defendants 2 to 29 and the properties sold by the first defendant to defendants 2 to 29 are mentioned in B schedule. The sales by the first defendant in respect of A schedule property are not binding on the plaintiff and the plaintiff has got half share in A schedule property mentioned in the plaint and therefore, the suit was filed for partition of half share in A schedule properties. 3. The first defendant contested the suit admitting that the A schedule property mentioned in the suit was included in the schedule 'C' of the partition deed as stated in the plaint. Nevertheless, the first defendant denied the allegations that 'C' schedule properties mentioned in the partition of the year 1950 were leased out and also denied the allegation that the school was managed by Ramasami Nainar and the plaintiff and according to the defendant, the school was managed by Ramasami Nainar and the plaintiff never evinced any interest nor exercised any right over the administration of the school or over the other properties which are mentioned in the 'C' schedule to the partition deed of the year 1950. The plaintiff also lost his right by ouster. It is further stated that the school was surrendered by the first defendant's father Ramasami Nainar to the Government and the A schedule property mentioned in the plaint was treated as the property of the first defendant and the plaintiff never received any compensation in respect of the lands acquired by the Government. As the plaintiff lost his right by not exercising any right over the suit property, he is not entitled to the relief of partition and therefore, the suit is liable to be dismissed. 4. The 14th defendant filed statement stating that if for any reason, the suit is decreed, the property purchased by him can be allotted to the share of the first defendant so that he can exercise his equity in the final decree proceedings. 5. On the above pleadings, the Trial Court framed the following issues:- "1. Whether the plaintiff is entitled to any share in the 'C' schedule mentioned in the earlier partition suit? 2. 5. On the above pleadings, the Trial Court framed the following issues:- "1. Whether the plaintiff is entitled to any share in the 'C' schedule mentioned in the earlier partition suit? 2. Whether the first defendant ousted the plaintiff from the enjoyment of the suit properties? 3. Whether the plaintiff is entitled to the relief of partition? 4. Whether the sales effected by the first defendant in favour of defendants 2 to 29 are binding on the plaintiff? 5. Whether the suit is properly valued? 6. To what relief, the plaintiff is entitled?" The additional issues framed are as follows:- "1. Whether the sale in favour of the 14th defendant by the first defendant was for proper value? 2. Whether the property purchased by the 14th defendant has to be allotted in the event of any decree being passed to the share of the first defendant?" 6. Issue No.5 was answered in favour of the plaintiff holding that the suit was properly valued. Issues 1 to 3 were tried together and the Trial Court held that the suit was not filed in respect of the properties mentioned in 'C' schedule to the earlier partition list of the year 1950 and only two items are included in the suit and therefore, the suit is bad for partial partition and the first defendant and his father were enjoying the property from the year 1971 to the exclusion of the plaintiff and therefore, it can be presumed that the plaintiff waived his share and the first defendant was enjoying the property from 1971 to the exclusion of the plaintiff and also perfected title by adverse possession and the plaintiff is not entitled to the relief of partition. 7. Issue No.4 was answered in favour of the first defendant holding that the sales in favour of defendants 2 to 29 are valid and binding on the plaintiff and additional issue No.1 was answered in favour of the 14th defendant and additional issue No.2 was answered as unnecessary as the plaintiff was not entitled to claim any partition in respect of those properties and in the result, the suit was dismissed and aggrieved by the same, the present appeal is filed. 8. 8. It is submitted by the learned counsel for the appellants that the court below, having found that the suit properties were included in the 'C' schedule in the earlier partition of the year 1950, ought to have held that A schedule properties are the joint family properties of the plaintiff and the first defendant and they are the joint owners and there cannot be any adverse possession against the co-owner and the Trial Court, without properly appreciating the judgment reported in AIR 1981 SC 77 and 1991 LW 296 cited by the plaintiff before the Trial Court, erred in holding that the plaintiff was not entitled to the partition. The learned counsel further submitted that the first defendant has not produced any evidence to prove the ouster of the plaintiff and the documents filed by the first defendant will not also prove ouster and between the co-owners, there is no question of adverse possession and the first defendant did not prove that the plaintiff was ousted from the enjoyment of the property and the enjoyment of the property by one co-owner and the non-participation in enjoyment of the property nor its income by the other owner will not amount to ouster as held by the Honourable Supreme Court in the judgment in AIR 1981 SC 77 and 1991 LW 296 and therefore, the court below ought to have decreed the suit. 9. According to me, having regard to the pleadings and the documents filed, the following points arise for consideration in the first appeal:- "1. Whether the suit for partition is maintainable having regard to the fact that a Trust was created in respect of 'A' schedule property? 2. Whether the Trial Court was right in holding that the first defendant proved ouster and proved that the plaintiff did not participate in the enjoyment of 'A' schedule property and he waived his right?" 10. Whether the suit for partition is maintainable having regard to the fact that a Trust was created in respect of 'A' schedule property? 2. Whether the Trial Court was right in holding that the first defendant proved ouster and proved that the plaintiff did not participate in the enjoyment of 'A' schedule property and he waived his right?" 10. Though the plaintiff/appellant alleged in the plaint that there was a partition on 6.12.1950, between the plaintiff and his uncle Ramasami Nainar under two unregistered partition deeds and as per those partition lists, A schedule property mentioned in this partition suit was allotted to the share of Ramasami Nainar and B schedule property was allotted to the plaintiff and 'C' schedule property was kept in common and the properties kept in 'C' schedule were enjoyed by the plaintiff and his uncle in common and in respect of some of the properties, they created a trust for running a school and other properties were acquired by the Government and compensation was shared by both the parties, the earlier partition list, dated 6.12.1950, was not produced before the court. Nevertheless, the first defendant admitted the same and also the property in 'A' schedule mentioned in the suit was one of the properties mentioned in 'C' schedule to the partition list and the contention of the learned counsel was that the plaintiff waived his right in respect of those properties and the plaintiff was also ousted from the enjoyment of both the properties for more than the statutory period and therefore, the plaintiff cannot claim any right over those properties. 12. According to me, the findings of the Trial Court that the properties were enjoyed by the first defendant from 1971 and the plaintiff did not participate in the enjoyment of the property nor shared the income and that would also prove that the first defendant ousted the plaintiff in the matter of 'A' schedule property, cannot be sustained. As rightly submitted by the learned counsel for the appellants, in the judgment reported in KARBALAI BEGUM v. MOHD. SAYEED ( AIR 1981 SC 77 ), it has been clearly held as follows:- "It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. SAYEED ( AIR 1981 SC 77 ), it has been clearly held as follows:- "It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees." 13. Similarly in M.M.SHAFFIULLAH v. P.A.MAHBOOB SAHIB (91 LW 296) also it has been held as follows:- "But, in the case of a co-owner to constitute adverse possession, there must be something more than the mere exclusion of possession and perception of profits, and there must be denial of the rights of the co-owner, over to property and that denial must be made to his knowledge. Certain factors have been considered to be relevant in examining this aspect, viz., (I) dealings by the party in possession treating the properties as exclusively belonging to him, and (2) the means of the excluded co-sharer of knowing that this title has been denied by the co-owner in possession." 14. Therefore, when the properties were owned by two persons and one person claims that he became the absolute owner of the property by ouster, he has to prove something more than the mere non-participation in enjoyment of properties by other co-owner and he must also prove that there was a denial by the person who claims to be the absolute owner and the ouster and denial must be to the knowledge of the other co-owner. In this case, there was no evidence to the fact that the first defendant denied title of the plaintiff in respect of the suit property and the sale deeds in favour of defendants 2 to 29 were of the year 1982 and the suit was filed in 1988. Therefore, there is no question of ouster over a statutory period by the first defendant and this was not properly appreciated by the court below. Therefore, there is no question of ouster over a statutory period by the first defendant and this was not properly appreciated by the court below. Hence, the findings of the court below that the appellant/plaintiff waived his right and the first defendant also proved ouster for a statutory period and therefore, the plaintiff is not entitled to the relief of partition, are set aside and point for consideration No.2 is answered in favour of the appellant. 15. Nevertheless, the plaintiff/appellant cannot succeed in this case. Admittedly, under Ex.A1, a Trust was created for the purpose of running a school and 'A' schedule property was dedicated for the purpose of running a school. It is seen from Ex.A1 that the plaintiff and his uncle Ramasamy Nainar, the father of the first defendant executed a Trust Deed in favour of Raman Higher Secondary School and 'A' schedule property was dedicated for that purpose. Therefore, as per 'A' schedule, the property mentioned in the suit becomes the trust property and if it is a Trust property, the suit for partition of Trust property by the plaintiff treating the same as his separate property is not maintainable. This aspect was not at all considered by the Trial Court. Though there is no pleadings to that effect by the first defendant and no issue was framed to that effect, considering the legal issue and the suit property is a Trust property as per Ex.A1 which is also admitted by both the parties, the suit for partition of Trust properties will not lie. Therefore, on that ground, the plaintiff/appellant is not entitled to succeed and the point for consideration No.1 is answered against the plaintiff and I hold that the suit properties are Trust properties under Ex.A1 and the suit is not maintainable and on that ground the suit is liable to be dismissed. In the result, the appeal is dismissed and though the finding of the Trial Court is partly set aside, the suit is dismissed. No costs.