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2016 DIGILAW 2992 (MAD)

F. Abdul Suban v. A. Noorunnissa

2016-08-24

R.MALA

body2016
JUDGMENT : The first defendant, who lost the legal battle before the trial Court has come forward with this appeal against the judgment and decree dated 14.07.1994 made in O.S.No.78 of 1992 on the file of the Subordinate Judge, Thanjavur. 2. The respondents 1 to 3, as plaintiffs, filed a suit for partition and separate possession of 1/2 share in item 1 to 4 of the suit properties along with the 2nd defendant/4th respondent herein stating that the suit properties are originally belong to one Fackir Mohammed, who is none other than the father of first defendant/appellant and one Abdul Majid. The first plaintiff is the wife of Abdul Majid and their children are the second and third plaintiffs and the second defendant. The father of the first defendant and Abdul Majid viz. T.A.Fackir Mohammed Saheb had executed a registered settlement deed dated 14.07.1968, in which, ‘A’ schedule properties were allotted to the first defendant and Abdul Majid. So they are entitled 1/2 share in the suit properties. They have not effected partition between them by metes and bounds. Even after the death of Abdul Majid on 03.05.1991, the suit property is being possessed and enjoyed in common by both the plaintiffs and defendants. 3. As per the settlement deed, the legal heir of Abdul Majid is entitled 1/2 share in the property. Abdul Majid was suffering some ailments and he was in a helpless situation and he had lot of noudles over his face and body and hence, the first defendant obtained documents from him by fraud. Therefore, the plaintiffs and the second defendant have filed separate suits for setting aside the release and exchange deeds obtained by the first defendant and the suit is pending in O.S.No.249 of 1991 before the Subordinate Court, Thanjavur. The plaintiffs filed another suit with reference to the partnership firm called as ‘R.S.Emporium’, which is also pending. When the plaintiffs demanded orally a partition of the suit properties by metes and bounds and dividing separate properties for their half share in the suit properties, the same has not been complied with by the first defendant. Hence, the plaintiffs filed the suit for partition and separate possession of their half share in the suit properties. 4. Resisting the same, the first defendant/appellant has filed a detailed a written statement stating that the execution of settlement deed is accepted. Hence, the plaintiffs filed the suit for partition and separate possession of their half share in the suit properties. 4. Resisting the same, the first defendant/appellant has filed a detailed a written statement stating that the execution of settlement deed is accepted. At the time of execution of settlement deed, the old house existed in T.S.No.865, which was in dilapidated condition was pulled down and a pucca terraced structure has been constructed by the first defendant with the consent and knowledge of his deceased brother Abdul Majid. In the said house, door number has been assigned as door No.27/865. In or about 1975, there was an oral arrangement, in which, the first defendant and Abul Majid agreed that the eastern half of T.S.No.865 could be taken by the first defendant as his share and the remaining western half could be taken by Adbul Majid. Similarly, Abdul Majid had orally relinquished his share in T.S.No.864, viz., the second item of suit property, in lieu of about 2300 sq. ft. given by the first defendant in T.S.No.863, viz., the fourth item of suit property. 5. In fact, only in accordance with this oral arrangement, the parties have been in their respective enjoyment. Only after the oral arrangement, Abdul Majid put up his own structure in his western portion in T.S.No.865 in 1976, which was assigned door No. 27A/865. Consistent with this oral arrangement and the subsequent conduct, the deceased Abdul Majid has executed the release deed dated 14.03.1991, which is valid. In view of the oral arrangement, the plaintiffs are entitled in addition to their half share to an area of about 2300 sq. ft in lieu of their share in second item of suit property. The first defendant has no objection to his being allotted half share in fourth item of suit property less 2300 sq. ft. As third item of suit property, the first defendant is entitled to moiety. The first defendant is in possession and enjoyment of the first and second item of suit property with the knowledge of Abdul Majid in pursuance of the oral arrangement. The plaintiffs are estopped from questioning the same. He has also paid court fee for allotment of his share in respect of third and fourth item of suit properties. 6. The first defendant is in possession and enjoyment of the first and second item of suit property with the knowledge of Abdul Majid in pursuance of the oral arrangement. The plaintiffs are estopped from questioning the same. He has also paid court fee for allotment of his share in respect of third and fourth item of suit properties. 6. The first defendant has also filed additional written statement stating that if the Court is not accepted, the oral partition is bad for non inclusion of house in door No.27A and prayed for dismissal of the suit. 7. The trial Court, after considering the averments in plaint and written statement, framed necessary issues, jointly tried the suit along with suit in O.S.No.249 of 1991 filed by the respondents for cancellation of release deed and exchange deed and dismissed the suit in O.S.No.249 of 1991 and decreed the suit in O.S.No.78 of 1992 granting decree stating that the plaintiffs are entitled the house in Door No.27A/865 and the first defendant is entitled the house in Door No.27 and in respect of second item of suit property, eastern side door No.27 A and northern side 3 feet has been allotted to Abdul Majid and third and fourth item of suit property has been divided into equal 1/2 share. Against which, the present appeal has been preferred. 8. The learned counsel for the appellant would submit that once the trial Court has accepted the oral arrangement in respect of first item of suit property and portion of second item of suit property, the Court ought to have accepted the other items. He would further submit that once the trial Court has dismissed the suit in respect of setting aside the release deed and exchange deed, this Court ought to have accepted the oral arrangement and prayed for setting aside the decree and judgment and upheld the oral arrangement between both the parties. 9. Resisting the same, the learned counsel for the respondents 1 to 3 would submit that the trial Court has rightly held that only in respect of house property, there was oral arrangement and there was no oral partition between both the parties and hence, he prayed for the dismissal of the appeal. 10. 9. Resisting the same, the learned counsel for the respondents 1 to 3 would submit that the trial Court has rightly held that only in respect of house property, there was oral arrangement and there was no oral partition between both the parties and hence, he prayed for the dismissal of the appeal. 10. Considering the rival submission made on either side, now, this Court has to decide as to (i) whether the trial Court is right in accepting the oral arrangement in respect of house and disbelieving the oral arrangement in respect of first and second item of property. (ii) Whether the decree and judgment passed by the trial Court is sustainable or not? (iii) To what relief, the appellant is entitled to? 11. The admitted facts are that the suit properties are originally belonging to the appellant's father Fackir Mohamed Saheb. He executed the settlement deed Ex.A1 on 14.07.1968 in favour of Abdul Majid and the first defendant, in which, 'A' schedule properties are the subject matter of the suit. In the settlement deed, 'A' schedule properties have been given to both the Abdul Majid and the first defendant and that settlement deed was accepted and acted upon. After the marriage of the first defendant, they built up their house, which was assigned in Door No.27/865 and the plaintiffs put up construction, which was assigned as door No.27 A/865. 12. In the oral arrangement, it was agreed that the first item of suit property viz., T.S.No.864 and in second item of suit property viz., T.S.No.865, a portion has been given to the appellants and instead of 2300 sq. ft. fourth item has been given to Abdul Majid, in respect of their shares in the second item of suit property and that factum was denied by the plaintiffs. 13. Now, the point to be decided in this appeal is as to whether there is oral arrangement in respect of 1st and 2nd item of property?. 14. It is pertinent to note that during the life time of Adbul Majid, he alleged to be executed a release deed in respect of the house property and executed an exchange deed in respect of 'R.S.Emporium' on 14.03.1991. 14. It is pertinent to note that during the life time of Adbul Majid, he alleged to be executed a release deed in respect of the house property and executed an exchange deed in respect of 'R.S.Emporium' on 14.03.1991. Abdul Majid died on 03.05.1991 and the legal heirs of deceased Abdul Majid filed O.S.No.249 of 1991 and that suit has been tried along with the suit in O.S.No.78 of 1992 and the suit in O.S.No.249 of 1991 has been dismissed, against which, no appeal has been preferred and hence, the decision for uphelding the release deed Ex.A8 and Exchange deed Ex.A9 is final. 15. Now, the question to be decided is as to whether the trial Court accepting the oral arrangement in respect of house property and granted preliminary decree is sustainable? 16. Admittedly, after the marriage of Abdul Majit, the plaintiffs residing in the first item of suit property viz., the tiled house and the first defendant/appellant resided in another tiled house and he obtained approval under Ex.B10 and permission have been given under Ex.B11 in the year 18.10.1969. Therefore, he made construction and door number has been assigned as 27A/865. He has also made construction and assessment has also been given in his name and he is enjoying the properties. But, the document filed by the first defendant in Ex.B17 to B21 are after the released deed and exchange deed came into effect. But, admittedly, the respondents has not disputed the preliminary decree. 17. It is appropriate to consider the arguments advanced by the learned counsel for the respondents 1 to 4/plaintiffs that the fourth item is a waste water pond. D.W.1 himself has stated in his evidence that the fourth item was used as sewage pond. In his oral evidence, he has stated that 2300 sq. ft. has been given instead of taking share in the second item of suit property. He has further stated in his evidence that S.Nos.864 and 865 alone has been orally partitioned. He has fairly conceded that in the release deed, Ex.B8, it has been specifically mentioned that it was yet to be partitioned. The relevant portion is extracted herein: xxx On that basis only, preliminary decree has to be given for the remaining property, except property under release deed Ex.B8=A22. 18. He has fairly conceded that in the release deed, Ex.B8, it has been specifically mentioned that it was yet to be partitioned. The relevant portion is extracted herein: xxx On that basis only, preliminary decree has to be given for the remaining property, except property under release deed Ex.B8=A22. 18. In such circumstances, the appellant herein has not proved that there was an oral arrangement in the year 1969 – 1970. He has also obtained the released deed Ex.A22 = Ex.B8 and that has been considered by the trial Court in proper perspective and granted decree. Therefore, I am of the view that the trial Court has rightly considered the release deed and accepted the oral arrangement in respect of house, where the respondents 1 to 3 are in possession and enjoyment in door No. 27A/865 and granted decree and disbelieving the oral arrangement in respect of entire second item of property given to the respondents and hence, the decree and judgment passed by the trial Court is sustainable and the same does not warrant any interference and hence, the appellant is not entitled any relief. The points for consideration are answered accordingly. 19. In view of the answers given above, I am of the view the appeal deserves to be dismissed and accordingly, the same is liable to be dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.