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2014 DIGILAW 1641 (MAD)

Rajamani v. Arthanari Gounde

2014-06-23

P.R.SHIVAKUMAR

body2014
Judgment P.R. Shivakumar, J. 1. The Defendants in the Original Suit O.S. No. 176 of 1996 on the file of the Subordinate Judge, Sankari, are the Appellants in the Second Appeal. Arthanari Gounder, the sole Respondent in the Second Appeal, filed the above said suit for partition and for permanent injunction. Partition was claimed on the basis of the contention that though the parties were enjoying different portions of the suit property for the sake of convenience, there was no partition by metes and bounds. The nature of injunction sought for was not to prevent the Respondent/Plaintiff from taking his tractor, carts, men and cattle through the portions in the enjoyment of the appellants/defendants. 2. The claim of the Respondent herein/Plaintiff was resisted by the Appellants herein/ Defendants before the trial Court, contending that in 1955 itself there was an oral partition between Muthayi Ammal, the predecessor in title of the Respondent herein/ Plaintiff and Kali Gounder, the predecessor in title of the Appellants herein/Defendants; that pursuant to such oral partition and seperate enjoyment of different portions of their shares sub-divisions were made and seperate pattas came to be issued in favour of the persons in enjoyment of various portions and that since the Appellants/Defendants dug a well in their portion and they were able to irrigate their portions of land, the Respondent/ Plaintiff came forward with the suit with false and untenable averments making tall claims. 3. In the trial before the trial Court, on the side of the Respondent herein/Plaintiff, two witnesses were examined as P.Ws. 1 and 2 and six documents were marked as Exs.A1 to A6 and on the side of the Appellants herein/Defendants, three witnesses were examined as D.Ws. 1 to 3 and five documents were marked as Exs. B1 to B5. An Advocate Commissioner, appointed to inspect the suit properties filed a report and plan. The Report of the Advocate Commissioner and the Plan submitted by him were marked as Exs. C1 and C2. 4. 1 to 3 and five documents were marked as Exs. B1 to B5. An Advocate Commissioner, appointed to inspect the suit properties filed a report and plan. The Report of the Advocate Commissioner and the Plan submitted by him were marked as Exs. C1 and C2. 4. The learned trial Judge, at the conclusion of trial, considered the evidence adduced on both sides in the light of the points raised in the arguments advanced by the counsel appearing for both parties and upon such consideration, came to the conclusion that the case of the Respondent herein/Plaintiff that the suit property remained undivided and that the parties were enjoying different portions of suit property for the sake of convenience, was not probable and on the other hand, the case of the Appellants herein/Defendants that the property had been divided in 1955 itself by metes and bounds was substantiated by probabalities. Accordingly, the learned trial Judge by his Judgment and Decree dated 30.06.2003, dismissed the suit without costs. 5. The said decree of the trial Court was challenged by the Respondent herein/Plaintiff in A.S. No. 58 of 2006 before the Lower Appellate Court, namely the Court of Principal District Judge, Salem. The learned Lower Appellate Judge, after hearing, allowed the appeal and granted a preliminary decree for partition as prayed for by the Respondent herein/Plaintiff, directing division of the suit properties in to two equal shares and allotment of one such share to him. However, the prayer for injunction was negatived by the learned Lower Appellate Judge. 6. Challenging the reversing judgment and decree of the Lower Appellate Court, the appellants herein/Defendants have chosen to prefer the present Second Appeal on various grounds as set out in the Memorandum of Grounds of Second Appeal. The Second Appeal has been admitted identifying the following two questions of law that have to be arisen for consideration in this Second Appeal: (1) Whether the Lower Appellate Court erred in ignoring the admission of oral partition in the plaint itself? (2) Whether the Lower Appellate Court erred in ignoring the separate pattas granted to the parties evidencing partition and separate possession and enjoyment? 7. The Second Appeal came to be admitted in the month of April 2008 itself. Despite service of notice on the Respondent herein, the Respondent has not chosen to enter appearance either in person or through the counsel. 7. The Second Appeal came to be admitted in the month of April 2008 itself. Despite service of notice on the Respondent herein, the Respondent has not chosen to enter appearance either in person or through the counsel. Even as on today, when the matter stands listed for final disposal and the name of the Respondent herein is also found printed in the cause list, none appears on behalf of the Respondent. Hence, this Court is constrained to pronounce the judgment after hearing the arguments advanced by the learned senior counsel for the appellants. Accordingly, submissions made by Mr. K. Doraisami, learned senior counsel for the appellants are heard, the materials available on record are also perused. 8. Learned senior counsel for the appellants took this Court through various portions of the plaint which, according to him, would amount to a clear admission on the part of the Respondent herein/Plaintiff that there was separate enjoyment of different portions of the suit lands by the predecessor in title of the appellants and the Respondent herein which would give raise to a presumption that such enjoyment was pursuant to a final arrangement of partition as contended by the Appellants/Defendants. Besides pointing out the portions in the pleading of the Respondent herein/Plaintiff, the learned senior counsel for the appellants also brought to the notice of this Court various portions of the testimonies of P.Ws. 1 and 2 which also, according to him, would amount to a clear admission of earlier partition and would probabalise the case of the Appellants/ Defendants that the suit came to be filed with the ulterior motive to have new rights created over the portions owned by the Appellants separately. 9. The admitted facts are as follows:– The entire extent of punja land namely 5.96 Acres comprised in Old Survey No.310 in Nedungulam Village, Sankari Taluk, Salem District, originally belonged to one Marappa Gounder. On 08.03.1939 he sold an undivided half share in the suit properties to Angappa Mudali and Muthappa Mudali under Ex.A1. Even prior to the sale under Ex.A1, the remaining half share in the suit properties had been sold to one Kali Gounder. The half share purchased by Angappa Mudali and Muthappa Mudali came to be purchased by one Muthayammal under Ex.A2 on 20.05.1941. Thus, the entire extent of 5.96 Acres of punja land became jointly owned by Kali Gounder and Muthayammal. The half share purchased by Angappa Mudali and Muthappa Mudali came to be purchased by one Muthayammal under Ex.A2 on 20.05.1941. Thus, the entire extent of 5.96 Acres of punja land became jointly owned by Kali Gounder and Muthayammal. Kali Gounder is no more and his legal heirs are the Appellants/Defendants. According to the Appellants/Defendants, an oral partition took place between them in the year 1955 in which the entire extent was divided into several portions and different portions were allotted to Muthayammal and Kali Gounder. In the year 1965 there was a partition by way of a registered partition deed dated 17.05.1965 marked as Ex.A3, in the family of Muthayammal in which one of the sons of Muthayammal, namely Arthanari Gounder who is the Respondent herein/Plaintiff was allotted the property purchased by Muthayammal under Ex.A2 for his share and her other son Arunachala Gounder came to be allotted other properties for his share. In the said partition deed under Ex.A3 a recital had been made to the effect that the undivided half share in the suit survey number held by Muthayammal was to go to Arthanari Gounder, the Respondent herein/Plaintiff. On the strength of the said document alone, the Respondent/Plaintiff seems to have come forward with the suit contending that there was no partition by metes and bounds and the co-owners were enjoying different portions of the properties for the sake of convenience. 10. As rightly contended by the learned senior counsel for the appellants the enjoyment of separate portions and the mutation of Revenue Records besides sub-division on the basis of enjoyment were all admitted by the Respondent herein/Plaintiff in the plaint itself. However, the Respondent herein/Plaintiff has taken a stand that the separate enjoyment for convenient sake was mistaken by the Revenue Authorities to be enjoyment pursuant to a partition by metes and bounds and the same resulted in the sub-division and issuance of separate pattas in accordance with their enjoyment. However, the Respondent herein/Plaintiff has taken a stand that the separate enjoyment for convenient sake was mistaken by the Revenue Authorities to be enjoyment pursuant to a partition by metes and bounds and the same resulted in the sub-division and issuance of separate pattas in accordance with their enjoyment. Having admitted that the Revenue Authorities chose to sub-divide and issue separate pattas, may be mistaking the enjoyment for convenient sake for enjoyment pursuant to a partition, the Respondent herein/Plaintiff has chosen to take a totally contradictory plea in the subsequent paragraph of the plaint by stating that he was not aware of the subdivisions effected by the Revenue Authorities during UDR survey and that he was taking steps to set aside the sub-divisions effected by the Revenue Authorities. There is absence of averment to show that Respondent herein/Plaitiff had filed any appeal or revision against the sub-divisions and grant of pattas. There is no proof to show that before filing of the suit or at the time of filing the suit or after filing of the suit such an appeal or revision came to be preferred by the Respondent/Plaintiff. The purchase made by Angappa Mudali and Muthappa Mudali on 08.03.1939 under Ex.A1 and the purchase made by the plaintiff's mother Muthayammal from the above said persons on 20.05.1941 under Ex.A2 and the family partition effected under Ex.A3 on 17.05.1965 were cited as the cause of action for the filing of the suit for partition. In addition to that, the alleged demand for partition made by the plaintiff on 04.08.1986 and the alleged refusal by the Appellants/Defendants to agree for amicable partition on 04.08.1986, the alleged act of preventing the passage of cart through the land in the enjoyment of the Appellants/Defendants on 05.08.1996 were also cited as the other facts constituting cause of action for filing the suit for partition and permanent injunction. The Respondent/Plaintiff did not claim any right of easement to take carts through the appellants' portions. Perhaps, the same was the reason why the trial Judge as well as the lower Appellate Judge negatived the prayer for injunction. 11. Besides the faulty pleading pointed out supra, the witnesses examined on the side of the plaintiff have also made several admissions. The Respondent/Plaintiff did not claim any right of easement to take carts through the appellants' portions. Perhaps, the same was the reason why the trial Judge as well as the lower Appellate Judge negatived the prayer for injunction. 11. Besides the faulty pleading pointed out supra, the witnesses examined on the side of the plaintiff have also made several admissions. The Respondent herein/Plaintiff who figured as P.W.1, made a clear admission that there was a division and according to the division subdivisions were made leading to issuance of separate pattas. The following admissions made by him in vernacular are reproduced hereunder:- “LANGUAGE” The above said part of his testomony will make it clear that he had candidly admitted that there was a partition in 1955 and they were enjoying the portions allotted to them in the said partition of 1955. The further admissions made by P.W.1 in his testimony are also extracted hereunder:- “LANGUAGE” By referring to the different portions in the enjoyment of the Appellants/Defendants, the Respondent/Plaintiff has admitted that the same are the separate properties of the appellants implying a division by metes and bounds. 12. One Chinnasamy Gounder who was examined as P.W.2 on the side of the Respondent herein/Plaintiff did not fully support the case of the Respondent herein/ Plaintiff. Though initially he would have made an attempt to contend that the co-owners were enjoying the property in common @Vfnghfk;@. in the later portion of his evidence he chose to plead ignorance as to the division by metes and bounds and issuance of separate pattas according to the division. The relevant admission in vernacular is as follows:- “LANGUAGE” In yet another place he has indirectly admitted the case of the Appellants/Defendants. He has referred to the portion in which the Appellants have dug a well on the Appellants' land. The relevant portion in his deposition reads as follows:- “LANGUAGE” 13. When such is the tenor of evidence of PW1 and PW2, this Court has to consider the reason why the Respondent/Plaintiff could have chosen to come forward with the plea that there was no final partition by metes and bounds and the separate enjoyment was only for the sake of convenience. When such is the tenor of evidence of PW1 and PW2, this Court has to consider the reason why the Respondent/Plaintiff could have chosen to come forward with the plea that there was no final partition by metes and bounds and the separate enjoyment was only for the sake of convenience. Admittedly the defendants dug a well in the portion in their occupation and they irrigate the entire portions of land in their occupation regarding which they were granted separate pattas, with the water taken from the well. On the other hand the respondent/plaintiff does not have any well in any of portions of the suit survey number which are in his enjoyment. However, he has got a well in the neighbouring survey number belonging to him, namely Survey No. 309. As he was allotted portions here and there disconnected with each other he could irrigate only 2 Acres out of 3 Acres of land allotted to him in the suit survey number with the water from the well in survey number 309. The same could have been the reason for claiming a denovo partition by the Respondent/Plaintiff. If at all there was no partition and the parties were permitted to enjoy separate portions for the sake of convenience, they would not have been allowed by the other co-owners to dig a well for themselves and get service connection in their names alone, without making an attemt having it done on behalf of all. Even if one of the parties had chosen to high handedly dig a well without co-opting others, then and there itself the other co-sharers would have claimed a right to use the well subjecting themselves to pay contribution for the expenses incurred by the co-owner who dug the well. 14. Similarly in the undivided lands permanent plantations like growing co-conut trees, mango trees and teakwood trees would not have been allowed to be done by one of the co-owners alone, if there was no partition by metes and bounds. There are clear admissions to that effect that each party planted coconut trees, mango trees and teak wood trees in their respective portions. There are clear admissions to that effect that each party planted coconut trees, mango trees and teak wood trees in their respective portions. If all these aspects are taken into account, the only probable conclusion that can be arrived at is that the defendants, who are the appellants herein, were able to prove by preponderance of probabalities the oral partition pleaded by them and on the other hand the Respondent/Plaintiff miserably failed to prove his case of all the co-owners enjoying different portions for the sake of convenience without partition by metes and bounds. The well considered judgment of the trial Court was unnecessarily and wrongly interfered with by the learned Lower Appellate Judge. This Court does have no hesitation in holding that the finding of the Lower Appellate Court in this regard, is perverse in so far as the learned Lower Appellate Judge ignored not only the admissions made in the plaint but also admissions made in the evidence of P.Ws. 1 and 2. The learned Lower Appellate Judge also committed an error in ignoring the overwhelming circumstances pointing out the division by metes and bounds and separate enjoyment which alone permitted the Revenue Authorities to sub-divide and grant separate pattas. Without proper consideration of the above said aspects, the learned Lower Appellate Judge rendered a perverse finding which deserves to be reversed and set aside by this Court in exercise of its power of appeal. Accordingly, both the substantial questions of law are answered in the affirmative and in favour of the appellants, with the result that the Second Appeal is bound to succeed. 15. In the result, the Second Appeal is allowed, the Judgment and Decree dated 31.08.2007 in A.S. No. 58 of 2006 by the Court of Principal District Judge, Salem, is set aside and the Decree dated 30.06.2003 passed in O.S. No. 176 of 1996 by the Court of Sub-Judge, Sankari dismissing the suit without costs is restored. However, there shall be no order as to costs in the Second Appeal.