Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2259 (MAD)

Kuppusamy (Deceased) v. Pandu Konar

2018-07-26

T.RAVINDRAN

body2018
JUDGMENT : 1. In this second appeal, challenge is made to the judgment and decree dated 29.08.2001, passed in A.S.No.127/2000, on the file of the Principal District Court, Villupuram, modifying the judgment and decree dated 18.08.2000 passed in O.S. No.813/95, on the file of the II Additional District Munsif, Ulundurpet. 2. The second appeal has been admitted on the following substantial questions of law: 1. Whether on the facts and circumstances of the case, the first appellate Court was right in allowing the Appeal granting the reliefs in favour of the respondent in respect of item Nos.1 to 7 and 1.39 cents in Item No.8 without there being any evidence on record? 2. Whether the judgment and decree of the first appellate Court in granting the above said reliefs in favour of the respondent is based on proper appreciation of the evidence on record? 3. The suit has been laid by the respondent/plaintiff for the reliefs of declaration and permanent injunction. 4. In support of the plaintiff's case PWs 1 and 2 were examined, Exs.A1 to A23 were marked. On the side of the defendants DWs 1 to 8 were examined, Exs.B1 to B56 were marked. 5. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the plaintiff's suit. However, the first appellate Court, on an appreciation of the materials placed on record, was pleased to grant the reliefs in favour of the plaintiff as regards items 1 to 7 and 1.39 cents in 8th item and accordingly, modified the judgment and decree of the trial Court. Impugning the same, the present second appeal has been preferred. 6. The plaintiff seeks title to the suit properties on the footing that he has acquired the suit properties under various sale deeds and exchange deed. Materials placed on record go to show that the suit properties and the other properties originally belonged to Chinnasamy konar, Duraisamy konar and Dhadha konar, sons of Kuppa konar. It is found that the defendants come under the branch of Dhadha konar, one of the sons of Kuppa konar. It is found that the plaintiff claimed to have acquired the suit properties from the legal heirs of Chinnasamy konar and Duraisamy konar. It is found that the defendants come under the branch of Dhadha konar, one of the sons of Kuppa konar. It is found that the plaintiff claimed to have acquired the suit properties from the legal heirs of Chinnasamy konar and Duraisamy konar. In brief, according to the plaintiff, the abovesaid three sharers had effected oral partition and by way of the said partition, the suit properties and other properties belonging to them having become divided, it is his case that he had acquired the suit properties as put forth in the plaint and accordingly, claimed to be in the possession and enjoyment of the same. The plea of oral partition as projected by the plaintiff is disputed by the defendants/appellants. According to them, the three branches divided the properties in equal shares orally and enjoying their respective allotted shares. On the other hand, the plaintiff would put forth the case that the suit properties and other properties belonging to the three sharers had been divided orally amongst them as put forth in the plaint. Thus, it is found that the plaintiff, to succeed in his pleas, should at the foremost establish that the three branches had divided the properties belonging to them as projected in the plaint. When the said claim of the plaintiff has not been established as projected, it is found that the further claim of the plaintiff that he had acquired the suit properties from the legal heirs of Chinnasamy konar and Duraisamy konar as if the suit properties had been allotted to the said two branches as such cannot be accepted without any material to establish the factum of partition as put forth by him. Accordingly, it is found that when the defendants are found to be the descendants of the one branch i.e., Dhadha konar branch and when the revenue documents projected in the matter on the side of the plaintiff and the defendants would go to show that all the members belonging to the three branches are in the joint possession and enjoyment of the suit properties and in such view of the matter, when the plaintiff at the foremost failed to establish that the suit properties and other properties belonging to the three branches had been divided orally as pleaded by him, his further case that he had acquired the suit properties from the legal heirs of Chinnasamy konar and Duraisamy konar, as such, cannot be accepted. 7. The very basis of the plaintiff's claim of title to the suit properties is that the suit properties fell to the share of Chinnasamy konar and Duraisamy konar. That plea of the plaintiff has been stoutly disputed. Despite the same, there is no acceptable and reliable materials projected by the plaintiff to conclude that the suit properties in particular fell to the share of Chinnasamy konar and Duraisamy konar. On the other hand, when the defendants, the descendants of the other branch i.e., Dhadha konar, had pleaded that the suit properties and other properties belonging to the three branches had been equally divided and when the revenue documents projected in the matter go to expose that the defendants are also shown to be enjoying the properties in dispute in common, accordingly, it is found that the claim of the plaintiff that he had purchased the suit properties from the legal heirs of Chinnasamy konar and Duraisamy konar on the footing that the same had been allotted to their shares as such cannot be accepted sans any material pointing to the same. In such view of the matter, it is found that the first appellate Court without appreciating the main issue involved in the matter as to whether the plaintiff had established the factum of oral partition between the three branches as projected by him and when with reference to the same, there is no material worth acceptance placed by the plaintiff, it is found that, as rightly put forth by the defendants' counsel, the claim of the plaintiff that he had acquired title to the suit properties on the strength of the alleged purchases made by him cannot be upheld. Particularly, when it is found that the revenue documents projected in the matter go to show the joint enjoyment of the properties in dispute even by the defendants. 8. It is thus found that the trial Court has accordingly correctly appreciated the materials placed on record in the right perspective and accordingly noting that the suit properties are in the joint possession of the parties concerned and the plaintiff having failed to establish the plea of oral partition as put forth by him, held that the suit properties are in the joint possession and in such view of the matter, declined the reliefs of permanent injunction as well as the title sought for by the plaintiff in the suit. However, the first appellate Court seems to have accepted the case projected by the plaintiff as regards the partition between the three branches without any material pointing to the same and thus, it is found that though the first appellate Court also holding that the suit properties are in the joint possession and enjoyment of all the parties concerned, however, on the strength of the sale deeds projected by the plaintiff, proceeded to uphold the plaintiff's case in part. 9. However, when it is found that the reasonings and conclusions of the first appellate Court for upholding the plaintiff's title, possession and enjoyment of the items 1 to 7 and 1.39 cents in item 8 are found to be not based on any evidence available on record and when the determination of the plaintiff's case to the abovesaid extent by the first appellate Court is found to be not on the proper appreciation of the evidence on record, it is found that the judgment and decree of the first appellate Court cannot be allowed to sustain any further. In the light of the above discussions, the substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants. 10. In conclusion, the judgment and decree dated 29.08.2001, passed in A.S.No.127/2000, on the file of the Principal District Court, Villupuram are set-aside and the judgment and decree dated 18.08.2000 passed in O.S. No.813/95, on the file of the II Additional District Munsif, Ulundurpet are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.