Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2284 (MAD)

N. Thirumuppa Gowder v. Ponnusamy

2014-08-01

T.MATHIVANAN

body2014
Judgment : 1. Judgment and decree, dated 21.4.2005 and made in A.S.No.1 of 2005 on the file of the learned Principal Subordinate Judge, Gobichettipalayam, reversing the judgment and decree, dated 24.6.2002 and made in O.S.No.283 of 1995 on the file of the learned District Munsif, Sathyamangalam, have been challenged in this memorandum of second appeal. 2. The appellant is the plaintiff in the suit in O.S.No.283 of 1995, whereas the respondents 1 to 6 are the defendants 2 to 4, D1 and D5 and D6 in the suit, respectively. 3. The appellant/plaintiff is the younger brother of fourth respondent/D1. The third respondent/D4 is the wife of the fourth respondent/D1 and the respondents 5 and 6/D5 and D6 are the son and daughter of the respondents 3 and 4/D4 and D1. 4. The respondents 1 and 2/D2 and D3, though they are related to the third respondent Marammal, in so far as the family of the appellant/plaintiff and the fourth respondent/D1 is concerned, they are strangers. However, they claim exclusive right over the suit property saying that they have purchased the same through the Power of Attorney of the fourth respondent/D1 on 7.8.1995 for a valuable consideration. 5. D.W.2 is none other than the elder brother of the respondents 1 and 2/D2 and D3. 6. The appellant/plaintiff has filed the above suit for partition in respect of his ½ share in the suit property as well as for future mesne profits. 7. Originally the suit was filed as against the respondents 1 and 2 as well as the fourth respondent/D2, D3 and D1. 8. Since the respondents 1 and 2/D2 and D3 had taken a stand that the whereabouts of fourth respondent/D1 (their vendor) are not known for more than ten years and that unless and until the wife and the children of D1 are impleaded as the parties to the suit, the suit is not maintainable, the appellant/plaintiff had proceeded to amend the plaint and subsequently, the third respondent/D4 and the respondents 5 & 6/D5 and D6 were impleaded as the defendants 4 to 6 in the suit. The respondents 1 and 2/D2 and D3 alone had contested the suit as the third respondent/D4 had simply adopted their written statement. 9. On appreciation of the evidences both oral and documentary, the trial Court had passed a preliminary decree on 24.6.2002 in favour of the appellant/plaintiff. 10. The respondents 1 and 2/D2 and D3 alone had contested the suit as the third respondent/D4 had simply adopted their written statement. 9. On appreciation of the evidences both oral and documentary, the trial Court had passed a preliminary decree on 24.6.2002 in favour of the appellant/plaintiff. 10. Challenging the correctness of the judgment and decree, the respondents 1 to 3/D2 to D4 have preferred an appeal in A.S.No.1 of 2005 on the file of the learned Principal Subordinate Judge, Gobichettipalayam. 11. After hearing both sides and on appreciation of the evidences, the lower appellate court has allowed the appeal on 21.4.2005 reversing the judgment and decree of the trial Court and subsequently, the suit was dismissed. 12. Having been aggrieved by the impugned judgment, dated 21.4.2005 and made in A.S.No.1 of 2005, the appellant, being the plaintiff in the suit, has filed this second appeal. 13. The second appeal came to be admitted on the following substantial questions of law:- a. Whether the lower appellate court is correct in holding there was an oral partition in 1959 and the suit property was allotted to the first defendant and the house situate in Nalroad was allotted to the plaintiffs without considering the fact that the house site was allotted to the plaintiff only in 1975 under Ex.A.17? b. Whether the lower Appellate Court is correct in believing the oral partition in the absence of examining the witnesses who were participated in the partition? 14. It is obvious to note here that both the substantial questions of law are overlapping with each other and therefore, they can be answered in single Unit based on Ex.A.17 and the evidence of P.W.1 as well as D.W.4, however, it requires a well-considered reasoning. Conspectus of facts:- 15. For the sake of convenience and easy reference the appellant may hereinafter be referred to as the plaintiff, whereas the respondents be referred to as the defendants in accordance with their rank in the suit wherever the context so require. 16. The plaintiff and the first defendant are brothers and sons of one Nanjappa Gounder. One Marakkal is their mother and wife of Nanjappa Gounder. Nanjappa Gounder had pre-deceased his wife Marakkal and Marakkal also died intestate on 29.6.1959 leaving behind the plaintiff and the first defendant as their legal heirs. The first defendant is the elder brother of the plaintiff. 17. One Marakkal is their mother and wife of Nanjappa Gounder. Nanjappa Gounder had pre-deceased his wife Marakkal and Marakkal also died intestate on 29.6.1959 leaving behind the plaintiff and the first defendant as their legal heirs. The first defendant is the elder brother of the plaintiff. 17. Originally, the plaintiff's father Nanjappa Gounder and his mother Marakkal owned lands in Thoppampalayam Village. For the purpose of constructing Bavanisagar Dam, the government had acquired that land and in lieu thereof, the Government had given suit property to the plaintiff and the first defendant in Rajan Nagar. 18. Since the first defendant is the elder brother of the plaintiff and they had been enjoying the land jointly, the Government had issued patta in the name of the first defendant as he being the elder male member of the joint family vide D.R.No.147 of 1969 on 15.9.1959. 19. According to the plaintiff, the first defendant was looking after the family as well as the family property being the manager of the joint family. They had been enjoying the property jointly till 1993 and they had also made several improvements in the land jointly. 20. Taking advantage of the entries made in the revenue records in his name, the first defendant had been trying to dispossess the plaintiff and accordingly, he was dispossessed on and from 4th week of July 1994. 21. He had also created sale deeds in favour of the defendants 2 and 3 vide documents No.531/95 and 532/95, dated 1.2.1995. The first defendant has no absolute right to execute the sale deeds in respect of the entire suit property as the plaintiff is entitled to ½ share in respect of which the suit has been instituted. 22. As afore stated in the opening paragraphs, the defendants 2 and 3, claiming to be the purchasers of the property from the first defendant have alone contested the suit by filing their common written statement, which was subsequently adopted by D4 being the wife of D1. D1 remained ex parte. 23. D2 and D3 have contended that the suit property and a house property situated at Bavanisagar Nalroad were belonged to the family of the plaintiff and the first defendant. After the demise of their mother Marakkal, the plaintiff and the first defendant had partitioned their properties as early as in the year 1959. 24. D1 remained ex parte. 23. D2 and D3 have contended that the suit property and a house property situated at Bavanisagar Nalroad were belonged to the family of the plaintiff and the first defendant. After the demise of their mother Marakkal, the plaintiff and the first defendant had partitioned their properties as early as in the year 1959. 24. In pursuant to the partition, the suit property was allotted to the share of the first defendant whereas the housing property was allotted to the share of the plaintiff wherein the plaintiff is now residing and running a hotel. About 25 years ago, the first defendant had permitted D2 and D3 to cultivate the suit property. 25. They have also contended that the first defendant had never demanded either premium or rent from these defendants. Approximately, in the year 1995, the first defendant had approached the defendants 2 and 3 and informed them to get a sale deed in their favour in respect of the suit property. Accordingly, these defendants had purchased the suit property from D1 on 1.2.1995 and he had also told that he would likely to go on pilgrimage all over India and accordingly, he went away after executing the sale deeds in favour of these defendants. Now the whereabouts of D1 are not known. 26. The defendants 2 and 3 have further contended that their possession and enjoyment of the suit property is open, continuous and uninterrupted with the knowledge of the plaintiff for more than 30 years and as such, they have perfected their title over the suit property by adverse possession. 27. The first defendant being the vendor of these defendants had exclusive right and interest over the suit property and therefore, the sale deed executed in their favour by D1 cannot be questioned in the suit. 28. Defendants 1 and 2 have further contended that the present suit for partition and separate possession without the relief of declaration of the plaintiff's title to the suit property is not maintainable. 29. Based on the pleadings of the parties to the suit,the trial court has formulated as nearly as six issues. 30. The plaintiff had examined himself as P.W.1 and yet another witness was examined as P.W.2 and during the course of their examination 17 documents were marked as Exs.A1 to A17. 29. Based on the pleadings of the parties to the suit,the trial court has formulated as nearly as six issues. 30. The plaintiff had examined himself as P.W.1 and yet another witness was examined as P.W.2 and during the course of their examination 17 documents were marked as Exs.A1 to A17. On the other hand, the second defendant had examined himself as D.W.1 and one Subbaiyan, who is none other than the brother of the defendants 2 and 3 was examined as D.W.2. Besides this, three more witnesses, including fourth defendant Marammal, who is the wife of the first defendant, were examined as D.Ws.3 to 5 respectively. During the course of their examination four documents were marked as Exs.B1 to B4 and apart from this, Commissioner's report and plan were marked as Exs.C1 and C2 respectively. 31. As herein before stated, the trial court based on the evidences both oral and documentary, had granted a preliminary decree as prayed for by the plaintiff and in the appeal preferred by the defendants 2 to 4, the lower appellate Court has reversed the judgment and decree of the trial court and proceeded to allow the appeal after dismissing the suit against which the present second appeal is filed. Whether the alleged oral partition said to have been taken place in the year 1959 is proved? 32. The defendants 2 and 3 have stated in paragraph 3 of their written statement that after the death of their mother Marakkal, the plaintiff and the first defendant had partitioned their properties orally and in pursuant to the said partition, the suit property was allotted to the share of the first defendant and the house property in which the plaintiff is residing was allotted to the share of the plaintiff. 33. In this connection, this Court would like to emphasise that as has been observed earlier, i.e., in the opening paragraphs of this judgment, in so far as the family of the plaintiff and the first defendant is concerned, the defendants 2 and 3 are strangers and therefore, they do not have any competency to speak about the oral partition effected between the plaintiff and the first defendant. 34. Even the fourth defendant, who is the wife of the first defendant has also no competency to speak about the partition because the said partition said to have been taken place in the year 1959. 34. Even the fourth defendant, who is the wife of the first defendant has also no competency to speak about the partition because the said partition said to have been taken place in the year 1959. But no effective evidence is forthcoming on the part of the defendants. 35. The second defendant was examined as D.W.1. Even in his evidence in chief, he has stated that he did not know as to what right the plaintiff is having over the suit property and that his vendor, i.e., the first defendant alone could speak about as to what right the plaintiff is having over the suit property. 36. Though, he has stated that the defendants 4 to 6 would speak about this fact, the fourth defendant, who has been examined as D.W.4, has not spoken to about the right of the plaintiff over the suit property. In his cross examination, he would depose that the families of the plaintiff as well as the first defendant are in Kodepalayam Village. 37. In his cross examination, he would depose that he did not know as to what were the properties the plaintiff and the first defendant were having in their families. 38. Above all, it may be significant to note here that D.W.1 has specifically admitted in his cross examination that he did not know as to whether partition was effected between the first plaintiff and the first defendant. 39. He has also conflicted and contradicted his own statement made in the written statement, while answering to a question as to whether he had stated in his written statement that a oral partition was effected between the plaintiff and the first defendant. He has specifically stated that he did not know as to whether a oral partition was effected or not between the plaintiff and the first defendant. 40. It is the specific case of the plaintiff (P.W.1) that no partition was effected between him and his elder brother , viz., the first defendant. 41. As per the plaint schedule, the suit property has been described as under:- "In Gobichettipalayam Registration District, Sathy Sub-Registration District, Sathyamangalam Taluk, Rajanagar Village, an extent of Punja Hectares 1.24.0 in S.F. No.442/2 with all trees appurtenants and mamool rights etc." 42. As per the plaint schedule, the total extent of the suit property measures 3.7 acres comprised in S.No.442/2. As per the plaint schedule, the suit property has been described as under:- "In Gobichettipalayam Registration District, Sathy Sub-Registration District, Sathyamangalam Taluk, Rajanagar Village, an extent of Punja Hectares 1.24.0 in S.F. No.442/2 with all trees appurtenants and mamool rights etc." 42. As per the plaint schedule, the total extent of the suit property measures 3.7 acres comprised in S.No.442/2. As per his case, his parents were originally owning the landed property measuring the same extent at Thoppampalayam Village. His father Nanjappa Gounder died intestate leaving behind his wife Marakkal and sons, viz., the plaintiff and the first defendant. Subsequently, his mother Marakkal was also died intestate on 29.6.1959 leaving behind him and the first defendant. 43. The Government in order to construct the Bavanisagar Dam had acquired that land and in lieu of the acquired property, the government had compensated with the lands of the same extent, i.e., 3.7 acres in Rajannagar and since they being the only heirs of their parents, the plaintiff and the first defendant were in possession and enjoyment, and treated the same as joint family property and since the first defendant was managing the family affairs as well as the suit property, the government had issued patta in his name, vide D.R.No.147 of 1969, dated 15.9.1959. 44. The land assignment order in D.R.No.147 of 1969, dated 15.9.1959 has been marked as Ex.A.1. Chitta in respect of the land comprised in S.No.442/2 which stands in the name of the first defendant has been marked as Ex.A.3. 45. It is also the case of the plaintiff that from the date of issuance of patta he along with his elder brother, i.e., the first defendant was in joint possession and enjoyment of the suit property peacefully till June 1993, i.e., till he was dispossessed by his elder brother and thereafter, it appears that the suit property was sold to the defendants 2 and 3 on 1.2.1995 under registered sale deeds bearing Document Nos.531/95 and 532/95. 46. With regard to acquisition, D.W.1 (D2) has admitted in his cross examination that the government had acquired the family land belonged to the plaintiff and the first defendant for the purpose of constructing the Bavanisagar Dam and in lieu thereof the suit property was assigned to them in the year 1959. 47. 46. With regard to acquisition, D.W.1 (D2) has admitted in his cross examination that the government had acquired the family land belonged to the plaintiff and the first defendant for the purpose of constructing the Bavanisagar Dam and in lieu thereof the suit property was assigned to them in the year 1959. 47. D.W.1 has also admitted that since the first defendant's father and mother were not alive in the year 1959, the government had issued a patta in the name of the first defendant. 48. He would further depose in his cross examination that he did not know in which year the patta was issued in the name of the first defendant. 49. From the above context, it is made clear that the second defendant (D2) has admitted that originally the plaintiff's father and mother were having properties in Thoppampalayam Village and it was acquired by the government for the construction of Bavanisagar Dam and in lieu of the acquired land, the present suit property was assigned to them and it is also made clear that the first defendant being the elder brother and manager of the joint family, after the demise of their parents, the patta was issued in his name. 50. The defendants have not denied these facts as it appear from the evidence of D.W.1. But with regard to the oral partition alleged to have been effected between the plaintiff and the first defendant, the defendants have miserably failed to establish the fact and hence, it could be safely concluded that the claim of oral partition in the year 1959 fails as not supported by evidence. Whether the plaintiff is entitled to get half share in the suit property? 51. It is the case of the plaintiff that the first defendant being his elder brother is not having any exclusive right over the entire suit property as he is having equal moiety, and therefore, he has come forward with the suit claiming ½ share in the suit property. 52. It was argued by Mr.R.T.Doraisamy, learned counsel appearing for the appellant that if at all the first defendant wanted to sell the property, he is entitled to sell his 1/2 share alone and the remaining ½ share, being the share of the plaintiff, could not have been sold to the defendants 2 and 3. 53. 52. It was argued by Mr.R.T.Doraisamy, learned counsel appearing for the appellant that if at all the first defendant wanted to sell the property, he is entitled to sell his 1/2 share alone and the remaining ½ share, being the share of the plaintiff, could not have been sold to the defendants 2 and 3. 53. It is also pertinent to note here that the defendants 2 and 3 have claimed that they had purchased the property on 1.2.1995 from the first defendant under two sale deeds bearing Document Nos.531/95 and 532/95. 54. It is also their case that out of the total extent of 3.7 acres, the second defendant had purchased 1.53 and ½ cents and the third defendant had purchased the remaining 1.53 and ½ cents. However, the original sale deeds bearing document Nos.531/95 and 532/95 have not been produced by the defendants 2 & 3. 55. What the plaintiff would contend is that since the first defendant is not entitled to sell the entire suit property, he is entitled to ½ share in the suit property. 56. The defendants 2 and 3 have contended that about 25 years ago, they were permitted to cultivate the suit property by the first defendant and according to them, they were in permissive occupation of the property for more than 25 years. 57. Further, they would contend that two years ago, i.e., two years prior to the filing of their written statement, the first defendant had approached and asked them to get a sale deed in their favour for a valuable consideration. Accordingly, they had purchased the suit property from the first defendant on 1.2.1995. But they never stated in their written statement that they had purchased the suit property through the power agent of the first defendant. 58. The so-called power agent is none other than the elder brother of the defendants 2 and 3. It is also the case of the defendants 2 and 3 that the whereabouts of the first defendant are not known for more than ten years. Even according to them, if the whereabouts of the first defendant are not known for more than 10 years, how the first defendant could have approached them, two years prior to the filing of their written statement and informed them to get the sale deed in their favour. Even according to them, if the whereabouts of the first defendant are not known for more than 10 years, how the first defendant could have approached them, two years prior to the filing of their written statement and informed them to get the sale deed in their favour. This crucial question has not been answered by D.W.1 and apart from this, as stated herein before, the defendants 2 and 3 have never pleaded in their written statement that they had purchased the suit property from D1 through his power agent, i.e., through D.W.2. It is settled principle of law that no amount of evidence could be considered in the absence of specific plea. 59. On verification of the records, it is revealed that the suit appears to have been filed in the month of June 1995. The defendants have filed their written statement on 15.9.1995, i.e., after two years of filing of the suit. 60. From the evidence given by D.W.2 and D.W.4 it is presumed that the first defendant is in the habit of visiting his house once in three months or once in six months. 61. As contemplated under Section 114 of the Indian Evidence Act 1872, the general presumption of facts is assumption resulting from one's experience of the course of natural events of human conduct and human character, and all those which one is entitled to make use of or has to make use of in the ordinary course of life, as well as the business of courts. This principle is laid down in State of Karnataka v. David Razario AIR 2002 SC 3272 (para 6) : (2002) 7 SCC 728 : 2002 CrlJ 4127 and further as envisaged in R. Puthunainar Alihithan v. P.H. Pandian AIR 1996 Sc 1599 an inference that a fact in dispute has been established can be drawn from the given objective facts, direct or circumstantial. 62. At the time of filing of the suit, the first defendant was very much available in the suit village and as rightly observed by the learned trial Judge, the first defendant had been evading the receipt of summons despite he was available in the given address. 63. On coming to the evidence of D.W.1, he has deposed that prior to their purchase, they had been cultivating the land as a tenant under the permission of the first defendant for about 20 years. 63. On coming to the evidence of D.W.1, he has deposed that prior to their purchase, they had been cultivating the land as a tenant under the permission of the first defendant for about 20 years. But they have not chosen to produce any documentary evidence to support their claim. They have produced only four documents ranging from Exs.B1 to B4. 64. P.W.2 was ploughing the land of the plaintiff and the first defendant for about three years. He is also the resident of Kodepalayam, where the plaintiff and the first defendant are residing. 65. He has stated that no partition was effected between the plaintiff and the first defendant and that the first defendant used to visit his house either once in three months or once in six months. 66. He has also stated that six months prior to date of his giving evidence, he had seen the first defendant in the bus stop. 67. His evidence has been corroborated by D.W.4 Marakkal, who is none other than the wife of the first defendant and the mother of the defendants 5 and 6. In her cross examination, she has stated that her husband used to visit the family once in six months, and in spite of that she did not know his whereabouts. 68. On a combined reading of the testimonies of P.W.2 and D.W.4, it is crystallized that the first defendant is very much available and he used to visit his wife and children once in three months or six months. 69. Under these circumstances, the defendants 2 & 3 have not specifically explained as to what prompted them to purchase the property through the power agent when the first defendant is available. The power agent is also none other than the elder brother of D2 & D3. 70. Ex.B4 is the xerox copy of the power of attorney deed, dated 13.2.1995 said to have been executed by the first defendant in favour of D.W.2 authorising him to sell the suit property in favour of the defendants 2 and 3. But the circumstances, under which the power of attorney deed was executed, have not been specifically explained. 71. 70. Ex.B4 is the xerox copy of the power of attorney deed, dated 13.2.1995 said to have been executed by the first defendant in favour of D.W.2 authorising him to sell the suit property in favour of the defendants 2 and 3. But the circumstances, under which the power of attorney deed was executed, have not been specifically explained. 71. As it is revealed from the testimonies of P.W.2 and D.W.4, when the first defendant was very much available and he was planning to sell the land, that could have been purchased from the first defendant directly instead of getting the sale deed executed through his power agent. This Court, therefore, presumes that Ex.B4 is shrouded with suspicious circumstances and apart from this the original sale deeds have not been produced. 72. In this connection D.W.2 has stated that since the second defendant had availed a loan, it was pledged with the bank. He has also stated that after three days from the date of execution of Ex.B4 Power of Attorney deed, he had sold the property in favour of the defendants 2 and 3. Exs.A15 and A16 are the copies of the sale deeds, dated 16.2.1995. 73. In the written statement D2 and D3 have stated that they had purchased the property on 1.2.1995. In his evidence, D.W.1(D2) has deposed that he had purchased the property on 7.8.1995. But it is revealed from Exs.A15 and A16 that D.W.2, i.e., the power agent of D1, had executed the sale deeds on 16.2.1995. Therefore, the evidence of D.W.2 seems to be self contradictory. 74. D.W.2 has stated that since the defendants were not having sufficient money to purchase the property on 13.2.1995, on which date , the power of attorney deed was said to have been executed by D1, he had paid the money to the first defendant. Therefore, it is explicit from the evidence of D.W.2 that on 13.2.1995, the first defendant was very much available to execute the power of attorney deed in favour of D.W.2 and D.W.2 had paid the money to D1 for executing the said deed. 75. D.W.2 has also stated that he had paid a sum of Rs.24000/-to the first defendant. But he had not accounted to the first defendant after having sold the land in favour of the defendants 2 and 3. 76. 75. D.W.2 has also stated that he had paid a sum of Rs.24000/-to the first defendant. But he had not accounted to the first defendant after having sold the land in favour of the defendants 2 and 3. 76. D.W.4 has deposed in her chief examination that the land stood in the name of the first defendant was acquired by the Government for the construction of Bavanisagar Dam and in lieu thereof, a land was given by the Government. In her cross examination she has stated that the ancestral property of Nanjappa Gowder (her father-in-law) was acquired by the govt. for the purpose of construction of Bavanisagar Dam. 77. She has also stated that her husband D1 had alienated the suit property in favour of the second defendant. But she says that she did not know the transaction directly. 78. She has further stated that the Government had acquired her husbands ancestral property some 40 years ago and instead of the acquired land, the suit property was given by the Government and since her husband is the elder member of the family, the patta was issued in his name. 79. On appreciation of the testimony of D.W.4, this Court finds that though she had adopted the written statement of D2 and D3 her evidence goes against their contention. 80. Though D.W.5 has supported the case of the defendants, his evidence simply seems to be artificial and mechanical. 81. Mr. R.T. Doraisamy, learned counsel appearing for the plaintiff (appellant) has canvassed that the alleged oral partition said to have been effected between the plaintiff and the first defendant has not been established by the defendants 2 and 3. 82. In this connection, he has raised the following three questions for the consideration of this Court. a. Whether the alleged oral partition is true and proved? b. Is it true to say that the defendants 2 and 3 were permitted to occupy the suit property by the first defendant some 25 years ago, i.e., prior to the sale? c. Whether the defendants 2 and 3 have established their claim that they had prescribed title to the suit property by way of adverse possession? 83. He has also argued that with reference to the question of oral partition, no satisfactory evidence is forthcoming on the part of the defendants 2 and 3. 84. c. Whether the defendants 2 and 3 have established their claim that they had prescribed title to the suit property by way of adverse possession? 83. He has also argued that with reference to the question of oral partition, no satisfactory evidence is forthcoming on the part of the defendants 2 and 3. 84. He has also adverted to that the first defendant's enjoyment of the suit property was in the capacity of coparcenor and therefore, it has to be construed that he was in possession on behalf of the plaintiff also. 85. Mr. R.T. Doraisamy, while advancing his arguments has drawn the attention of this court to paragraph 12 of the lower appellate court judgment, wherein, the lower appellate court has found that though it is admitted that Ex.A1 was issued in the name of the first defendant after acquiring their ancestral land, there is no evidence to show that the suit property was given in the name of the first defendant in lieu of the acquired land. 86. Mr. R.T. Doraisamy has also indicated that all the witnesses who were examined on behalf of the defendants had not spoken to about the oral partition and he has also maintained that once the oral partition is not proved, the plaintiff is entitled for partition. 87. Besides this, he has also pointed out that though the defendants 2 and 3 had taken a stand in the written statement that in the year 1959 an oral partition was effected between the plaintiff and the first defendant after the demise of their parents, while giving evidence, D2 (D.W.1) had deposed that he did not know about the oral partition. In this connection, he has emphasised that the second defendant had gone against his own written statement and therefore, his evidence, is inconsistent to his own case. 88. Ex.A17 is the patta issued in favour of the plaintiff in respect of his housing property comprised in R.S.No.192/3 at Thoppampalayam. This patta appears to have been issued in his name in the month of September 1975. 89. 88. Ex.A17 is the patta issued in favour of the plaintiff in respect of his housing property comprised in R.S.No.192/3 at Thoppampalayam. This patta appears to have been issued in his name in the month of September 1975. 89. In this connection, it has become imperative on the part of this Court to indicate that as per the case of the defendants 2 and 3, the oral partition was effected between the plaintiff and the first defendant in the year 1959 and in pursuant to the said oral partition, the suit property, i.e., the landed property was allotted to the share of the first defendant and that the housing property, wherein the plaintiff has presently been residing was allotted to the share of the plaintiff. 90. But this contention is disproved by Ex.A17 which would demonstrate that in the year 1975, the patta under Ex.A17 was issued in the name of the plaintiff in respect of the house property and therefore, it is established that the house property stands exclusively in the name of the plaintiff and it does not have any nexus with the suit property. 91. Further, Exs.A6 to A11 would go to prove the case of the plaintiff substantially that the plaintiff was in possession of the suit property along with the first defendant. 92. As pointed out by Mr.R.T. Doraisamy no finding was given in respect of the issue No.2 by the trial Court. 93. In support of his contention, Mr. R.T.Doraisamy, learned counsel for the appellant has placed reliance upon the decision in Bhagwant P. Sulakhe vs. Digambar Gopal Sulakhe and others ( AIR 1986 SC 79 ). In paragraph 14, the Apex Court has observed that,.......The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By an unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 94. By an unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 94. On coming to the instant case on hand, the plaintiff is able to establish the fact that till 1993, he had been in possession and enjoyment of the suit property along with his elder brother, viz., the first defendant and thereafter, taking advantage of the entries made in the revenue records in his name, the first defendant had in the fourth week of July 1994 dispossessed him from the property and thereafter, unilaterally had alienated the suit property in favour of the defendants 2 and 3 under two sale deeds, vide documents No.531 of 1995 and 532 of 1995. 95. In the light of the above said decision, though the first defendant is not having any right in respect of the plaintiff's ½ share in the suit property, he had sold out the entire property in favour of the defendants 2 and 3, deliberately, which is not permissible under law as he cannot convert the joint family property into his personal property. 96. With reference to the inconsistent plea, Mr.R.T. Doraisamy has placed reliance upon the decision in S. Malla Reddy & Others vs. Future Builders Cooperative Housing Society & Others (2013 (3) CTC 343). 97. In this case, while penning down the judgment on behalf of the Division Bench, the Hon'ble Mr. Justice M.Y. Eqbal has observed in paragraph 16 that, "the defendants cannot be permitted to substantiate the earlier written statement wherein there was an admission of the Suit claim of the plaintiff-society. 98. In paragraph 24, it has been observed as under:- "24. Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant- appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable." 99. On the other hand, Mr.N.Manokaran, learned counsel appearing for the defendants 2 and 3, while advancing his arguments has also raised a question for the consideration of this Court as to whether, "Ex.A1 assignment patta was issued in favour of D1 in lieu of acquisition of family property for the construction of Bavanisagar Dam. 100a. Already, this Court has answered this question based on the testimonies of D.W.1 (D2) and D.W.4 Marakkal being the wife of the first defendant. 100a. Already, this Court has answered this question based on the testimonies of D.W.1 (D2) and D.W.4 Marakkal being the wife of the first defendant. Therefore, this question need not be answered once again and he has also advanced his arguments based on Ex.A.17 saying that the family consisting of the plaintiff and the first defendant was having two properties, i.e., landed property, which is the suit property herein and the house property in which the plaintiff is presently residing. 101. He has also submitted that in the oral partition, which took place in the year 1959, the landed property was given to the first defendant and the house property was given to the plaintiff. This argument was also not discernible because based on Ex.A17, dated September 1995, the house property has been found to be the exclusive property of the plaintiff and that the suit property alone is found to be the family property in which the plaintiff is having ½ share. 102a. Further, it cannot be heard to say that no proof is available to show that the suit property was assigned in lieu of the land acquired by the Government. All the arguments advanced by Mr.N. Manokaran were negatived herein before and therefore, the question whether the suit property is a joint family property or the exclusive property of the first defendant need not be answered once again. 103. Apart from this, with regard to the inconsistent plea taken by D2 as well as the fourth defendant Marakkal, Mr. N. Manokaran has argued that they being the defendants, they can take any number of inconsistent pleas, but they should stick on anyone of the pleas. This argument also cannot be discerned. 104. Mr. N. Manokaran, has admitted that though the fourth defendant D.W.4 had adopted the written statement of D2 and D3 she had spoken to in favour of the plaintiff. Since D.W.4 was examined on behalf of the defendants she had to be cross examined by the defendants 2 and 3 as she had spoken to against their own case. 105. In this connection this Court would like to have the reference to the provisions of Section 154(1) of the Indian Evidence Act. 106. Since D.W.4 was examined on behalf of the defendants she had to be cross examined by the defendants 2 and 3 as she had spoken to against their own case. 105. In this connection this Court would like to have the reference to the provisions of Section 154(1) of the Indian Evidence Act. 106. Sub Section 1 to Section 154 envisages that :- “The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party.” 107. This section contemplates that the court in its discretion can allow a party to put any question to its own witness which may be put in cross-examination by opposite party. 108. As observed by the Apex Court in G.S. Bakshi vs. State (Delhi Administration) AIR 1979 SC 569 when a prosecution witness states something which is destructive of the prosecution case, the prosecution is entitled to pray that the witness be treated as hostile; in such a case the trial court must allow the public prosecutor to treat the witness as hostile. 109. On coming to the instant case on hand, D.W.4, despite her adoption of the written statement filed by D2 and D3 went against their case. Under this circumstance the defendant should have requested the trial court to permit them to cross-examine her treating her evidence as adverse in nature i.e., hostile in nature. 110. In PHIPSON ON EVIDENCE 15th Ed. (2000), para 11-58, page 276 it is observed : “Adverse” means “hostile”, that is, when in the opinion of the Judge, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the Court. He is not adverse in the statutory sense when his testimony merely contradicts his proof or because it is unfavourable to the party calling him. A witness, who is not compellable but chooses to give evidence may be treated as hostile. The Court of Appeal has said that an application to treat a witness as hostile must be made at the instant it is obvious that he is showing unmistakable signs of hostility. 111. A witness, who is not compellable but chooses to give evidence may be treated as hostile. The Court of Appeal has said that an application to treat a witness as hostile must be made at the instant it is obvious that he is showing unmistakable signs of hostility. 111. As already found by this Court that Ex.B.4 Power of Attorney has been shrouded with suspicious circumstances and it cannot be admitted in evidence as the first defendant was very much available at the time of execution of power of attorney deed and therefore, the sale deeds could have been executed directly by him instead of executing the same through the power agent. 112. With regard to the burden of proof, Mr. N. Manokaran, has placed reliance upon the decision in Union of India and others vs. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC 269 ). In this connection, he would submit that the defendants might have any number of lacunae,but it is the burden of the plaintiff to substantiate his case. 113. In order to fortify his contention he has also placed reliance upon the decision in Union of India vs. Ibrahim Uddin and another ( (2012) 8 SCC 148 ). 114. In this case, in paragraph 29, a Division Bench of the Apex Court has observed that, "admission is the best piece of substantive evidence that an opposite party can rely upon though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross examination to tender his explanation and clear the point on the question of admission. 115. It would be appropriate that an opportunity is given to the person under cross examination to tender his explanation and clear the point on the question of admission. 115. In the light of this observation made by the Apex Court, this Court would like to point out that as discussed herein before, if the defendants 2 and 3 had requested the trial court, they would have been given sufficient opportunity to cross examine D.W.4 (D4) to clarify her position as to why she had gone against their own case. But this decision instead of lending a helping hand to the case of the defendants has given an extra strength to the case of the plaintiff. 116. This Court, after assessing the overall circumstances arising out of the evidences both oral and documentary and on considering the judgment of the trial Court as well as the lower appellate Court, finds that the lower appellate court is absolutely wrong in holding that there was an oral partition in the year 1959 and that the suit property was allotted to the first defendant and the house situated in NalRoad was allotted to the plaintiff without considering the fact that the house site was allotted to plaintiff under Ex.A17. 117. Accordingly, the substantial questions of law 1 and 2 are answered in favour of the appellant/plaintiff. 118. In the result, the second appeal is allowed and the judgment and decree of the lower appellate court, dated 21.4.2005 and made in A.S.No.1 of 2005 are set aside and the judgment and decree of the trial court, dated 24.6.2002 and made in O.S.No.283 of 1995 are restored. However, there will be no order as to costs.