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2022 DIGILAW 2917 (MAD)

Sakthivel v. Samivel Thevar (died)

2022-08-25

P.VELMURUGAN

body2022
JUDGMENT (Prayer: Appeal Suit filed under Order 41 Rule 1 and Section 96 of the Code of Civil Procedure, to set aside the judgment and decree dated 20.04.2011 passed in O.S.No.44 of 2004 on the file of the Principal District Court, Pudukottai by allowing this first appeal.) 1. This Appeal Suit has been preferred challenging the judgment and decree dated 20.04.2011 passed in O.S.No.44 of 2004 on the file of the Principal District Court, Pudukottai. 2. The appellants are the plaintiffs in O.S.No.44 of 2011, on the file of the learned principal District Court, Pudukottai. The respondents are the defendants in the said suit. The appellants/plaintiffs filed the suit against the respondents/defendants for partition and separate possession of their ½ share in the plaint schedule properties by metes and bounds. After trial, the trial Court dismissed the suit. Challenging the said judgment and decree, the appellants/plaintiffs filed the present appeal before this Court. 3. The averments made in the plaint, in brief, are as follows:- The suit properties and other properties originally belonged to the first defendant and his brother – Muthaiah Thevar, being Hindu joint family properties. They already partitioned the nanja lands and some of the punja lands among them. But they jointly enjoyed the suit properties. When the Government took the suit village, the suit properties were not issued with patta. It came to know that Muthaiah Thevar and his wife – Mullaiammal approached the Settlement Officer and filed separate petitions in order to avoid any legal impediments because of the law existing at that point of time. The Settlement Officers issued patta to the suit properties. In the suit properties, Muthaiah Thevar and the first defendant were entitled to half share and joint possession over the same. Mullaiammal was not entitled to any share in the suit properties. Since patta was issued, she was not entitled to any right over the suit properties. Patta is not a document of title. Muthaiah Thevar died about 7 months ago. The first defendant is the son of Muthaiah Thevar. The second defendant is the wife of Muthaiah Thevar. The third defendant is the daughter of Muthaiah Thevar. The plaintiffs 4 and 5 are the wife and son of the deceased son of Muthaiah Thevar. They inherited half share of Muthaiah Thevar in the suit properties. The defendants 2 and 3 are the sons of the first defendant. The second defendant is the wife of Muthaiah Thevar. The third defendant is the daughter of Muthaiah Thevar. The plaintiffs 4 and 5 are the wife and son of the deceased son of Muthaiah Thevar. They inherited half share of Muthaiah Thevar in the suit properties. The defendants 2 and 3 are the sons of the first defendant. The defendants 4 and 5 are the sons of deceased Thirugnanam, who is son of the first defendant. The sixth defendant is the wife of first defendant. The seventh defendant is the daughter of the first defendant. (ii) The first defendant and the defendants 2 to 5 managed the family. Mullaiammal died about 10 years ago. The suit properties were in joint possession. Since the defendants 2 to 5 acted against the interest of the plaintiffs, the first plaintiff is not inclined to enjoy the suit properties jointly along with the defendants. Hence, the first plaintiff issued notice for partition, but the defendants protracted the same. Therefore, the first plaintiff issued notice to the defendants 2 to 5 for partition. The defendants 2 to 5 replied with false averments. There was no partition in the year 1960. The patta issued in favour of Mullaiammal did not confer any title over her. There was no partition in the year 1986. The defendants 2 to 5 tried to defeat the share of the plaintiffs. Hence, the plaintiffs filed the suit for partition. 4. The averments made in the written statement filed by the first defendant, which was adopted by the defendants 1 to 7, reads as follows:- (i) The first defendant denied that the suit properties and other properties originally belonged to the first defendant – Samivel Thevar and his brother – late Muthaiah Thevar as Hindu joint family properties and they partitioned some of the properties between them and the suit properties are not partitioned and they enjoyed the same as joint family properties. The first defendant also denied that he, his wife – Mullaiammal and his brother Muthaiah Thevar approached the Settlement Officer and filed separate petitions in order to avoid any legal impediments because of the law existing at that point of time and that the Settlement Officer issued patta to the suit properties and that in the suit properties, Muthaiah Thevar and the first defendant were entitled to half share and joint possession over the same and that Mullaiammal was not entitled to any share in the suit properties. (ii) The first defendant and his brother – late Muthaiah Thevar partitioned the joint family properties in 1960. It is an oral partition. There were no properties to be partitioned between them. Mullaiammal was issued with separate patta in respect of Item Nos.1 to 3 during Settlement. She was issued with joint patta in respect of Item Nos.14 and 15. The first defendant filed a suit in O.S.No.383 of 1991 on the file of the District Munsif Court, Aranthangi, seeking mandatory injunction for transferring the name from the Government records to the name of his wife as per the patta issued in the settlement and the suit was decreed. He filed E.P.No.190 of 1998 for executing the decree. Muthaiah Thevar, the father of the first defendant did not claim any right over the suit properties after 1960. The averment that the plaintiffs are in joint possession and enjoyment of the suit properties, is only for the purpose of the suit. The plaintiffs were not aware of the existence of the suit properties. The first defendant is in possession and enjoyment of the suit properties. The defendants 2 to 5 sent a reply dated 21.03.2001 to the notice issued by the plaintiffs on 23.01.2001. The averments in the reply notice may be treated as part of the written statement filed by the first defendant. There was a partition among the first defendant and his sons. It is an oral partition. They are in possession and enjoyment of their respective shares as per the oral partition. (iii) Late Muthaiah Thevar and his legal heirs were aware of the said fact. The plaintiffs are estopped from claiming any right over the suit properties. Muthaiah Thevar and the first defendant were not issued with patta for their shares during the Settlement. They are in possession and enjoyment of their respective shares as per the oral partition. (iii) Late Muthaiah Thevar and his legal heirs were aware of the said fact. The plaintiffs are estopped from claiming any right over the suit properties. Muthaiah Thevar and the first defendant were not issued with patta for their shares during the Settlement. The first defendant obtained patta for most of his shares by approaching the Court challenging the refusal of patta. Muthaiah Thevar did not prosecute the Court proceedings and hence, patta was not issued for many of his shares. Hence, the plaintiffs filed the suit for partition on the ground that the suit properties were joint family properties and they were not partitioned. The plaintiffs are not entitled to file the suit for partition and there is no cause of action for the suit. 5. The averments made in the written statement filed by the eight defendant, in brief, are as follows:- The eighth defendant is a third party. He belongs to Muslim community. The plaintiffs suppressing so many important facts, filed the present suit. The eighth defendant is in possession and enjoyment of the suit property in S.No. 169.1 admeasuring 14 acres. The said property is shown as item No.14 in the schedule of the properties. Muthaiah Thevar, son of Thandava Thevar, sold the said property to the eighth defendant on 16.07.1967 through a registered sale deed for a valid sale consideration. The eighth defendant is in possession and enjoyment of the said property based on the said sale deed. He incurred more expenses for reforming the said land. Hence, he is entitled to seek relief on the basis of equity. It is not correct to state that the plaintiffs are in joint possession of the suit properties. 6(i). On the basis of the above pleadings, the learned trial Judge framed the following issues: 1. Whether the plaintiffs are entitled to the relief of partition? 2. Is it correct to state that the suit joint family properties were partitioned in the year 1960? 3. Is it correct to state that there is no cause of action for the suit? 4. To what relief, the plaintiffs are entitled to? 6(ii). Whether the plaintiffs are entitled to the relief of partition? 2. Is it correct to state that the suit joint family properties were partitioned in the year 1960? 3. Is it correct to state that there is no cause of action for the suit? 4. To what relief, the plaintiffs are entitled to? 6(ii). The learned trial Judge framed the following additional issue on 10.04.2008 : Is it correct that the property should be allotted to the eight defendant as he had purchased the property in good faith? 7. In order to substantiate the case, on the side of the plaintiffs two witnesses were examined as PW1 and PW2 and five documents were marked as Ex.A1 to Ex.A5. On the side of the defendants, two witnesses were examined as DW1 and DW2 and twenty six documents were marked as Ex.B1 to B26. 8. On completion of trial and hearing of arguments advanced on either side, the learned trial Judge considering the evidence available on record, dismissed the suit. Aggrieved over that, the appellants/plaintiffs have filed the present appeal. 9. The learned counsel for the appellants would submit that the suit properties are the ancestral properties of the father of the first appellant- Muthaiah Thevar and the first respondent. They divided the nanja lands and some of the punja lands by way of oral partition and some other punja lands were not divided and that was enjoyed as a common property without any division of partition. The wife of the first respondent-Mullaiammal has no right in the suit properties. After the lifetime of the Muthaiah Thevar, the legal heirs of the Muthaiah Thevar, the appellants herein were enjoying the properties as a co-owner. Since the respondents acting against the interest of the family, the appellants sent a notice for partition and subsequently, they filed the suit. The ancestor of the appellants have got nanja and punja lands. The appellants have also admitted that in the year 1960 there was a oral partition and they are enjoying separately, but however the appellants denied that all the properties were divided in the year 1960 partition and thereafter, among the respondent's family in the year 1986, there was a oral partition and they are enjoying the property as their own. The specific case of the appellants is that all the suit properties are undivided joint family properties. 10. The specific case of the appellants is that all the suit properties are undivided joint family properties. 10. The learned counsel for the appellants further submitted that the trial Court dismissed the suit on two grounds that they have not produced any documents and also the appellants admitted that Mullaiammal had the patta and they have also not stated that why during the lifetime of Muthaiah Thevar the father of the first appellant not divided the punja lands and therefore, for want of documents and evidence, the suit was dismissed. In various proceedings, the respondents and also the father of the first appellant Muthaiah Thevar, admitted that there was a joint family property and also both of them sold some of the properties to the third parties and in all the documents, they mentioned that only ancestral properties. Therefore, those documents clearly shows that there were ancestral properties. The respondents said that the said properties were partitioned and it is for them to prove it that the properties were partitioned. He further submitted that subsequent to the suit, the appellants are able to collect some of the documents. Even in one of the proceedings, the respondents without impleading the appellants as parties, got the mandatory injunction. Hence, the appellants filed the petition to receive the additional document in CMP(MD) No.2879 of 2020 and the document is to be received as additional documents in the appeal, namely, the proceedings in Sec.11/8S.RA/ARG/72 dated 30.04.1974 passed by the Assistant Settlement Officer, Tanjore, which clearly shows that some of the properties stand in the name of the father of the first appellant Muthaiah Thevar and some of the items stand in the name of Muthaiah Thevar, first respondent and his wife jointly and also show that still the common properties are available and the proceedings of the Settlement Officer also clearly show that the properties still stand in the name of the family members, since because the properties stands in one of the coparcener, it does not mean that it is exclusive properties of that person. 11. The learned counsel for the appellants further submitted that these documents came to the hand of the appellants only after disposal of the suit. 11. The learned counsel for the appellants further submitted that these documents came to the hand of the appellants only after disposal of the suit. Even in the suit, only the first respondent alone has given the evidence and they have not examined the elder member of the family and the father of the first appellant was not examined, which clearly shows that the suit properties are all ancestral properties and still it has not been divided. Now, the respondents 1 to 7 tried to manipulate the records and also defeat the rights of the appellants. Therefore, the sale deeds and the subsequent proceedings are also vital documents to clearly show that the suit properties are the ancestral properties and still stand in the name of the family members and therefore, they are all liable for partition. If the documents are received as additional evidence, it would clearly show that still the family properties are available for partition. Therefore, he seeks to receive the said documents as additional evidence and mark the same and if any evidence is required in order to prove the documents, after setting aside the judgment, the matter may be remitted to the trial Court for fresh trial or taking additional evidence. 12. The learned counsel for the respondents 1 to 7 submitted that the properties stand in the name of the Mulliammal, wife of the first respondent, are the absolute property of her and she purchased the same from and out of her own income and her sridhana property. Her father was working in Malaysia and he got two daughters. Instead of giving jewels and other sridhana articles, he has given some lands to Mulliammal. Therefore, the properties stand in the name of Mullaiammal is not the ancestral property and it is not liable for partition. He further submitted that even in the year of 1960 itself, the ancestral properties were divided by partition between the Muthaiah Thevar and the first respondent and subsequently, they were enjoying properties as their separate properties. After that, in the year of 1986 the family members of the first respondent divided the properties among them. All the partition are oral partitions. Therefore, all the suit properties are allotted to the respondents and they are enjoying the properties as their own and it is not liable for partition and the appellants are not entitled for any partition. 13. All the partition are oral partitions. Therefore, all the suit properties are allotted to the respondents and they are enjoying the properties as their own and it is not liable for partition and the appellants are not entitled for any partition. 13. The learned counsel for the respondents 1 to 7 further submitted that the first appellant's father Muthaiah Thevar sold the properties more than the extent he was entitled. Even for the eighth respondent, he sold the properties of 14 acres and apart from that, he sold the properties to other third parties also for more than the extent, he was entitled. The learned counsel further submitted that even during the Settlement, only the properties covered, were divided and came to his share and the suit properties are not the ancestral properties and all the suit properties are the properties of the Mulliammal and the respondents and also the properties came to the first respondent through partition. Therefore, the appellants are not entitled for any partition. The trial Court rightly dismissed the suit. Even the Muthaiah Thevar, the brother of the first respondent, in the suit in O.S.No.685 of 1967, during his life time he has clearly admitted the 1960 oral partition and they divided his share and they got 2 ½ veli lands. Therefore, he admitted the oral partition and further the documents filed by the appellants as additional evidence, clearly show that the Muthaiah Thevar sold several properties. Unless it is partitioned and came to the share of the Muthaiah Thevar he could not have sold the properties as their own properties and therefore, the ancestral properties were divided by oral partition in the year 1960 itself. Subsequently, the properties came to the first respondent, were enjoyed with their family members and they divided the same by oral partition in the year of 1986 and now, they are in possession of the properties. During the pendency of the case, the respondents came to knowledge about some of the documents, which are very essential to this case. Subsequently, the properties came to the first respondent, were enjoyed with their family members and they divided the same by oral partition in the year of 1986 and now, they are in possession of the properties. During the pendency of the case, the respondents came to knowledge about some of the documents, which are very essential to this case. Hence, the respondents 2 to 7 filed a petition in CMP(MD) No.6467 of 2022 to receive the additional documents and the documents are to be received as additional documents in the appeal, namely, (i) SRO copy of Sale Deed dated 11.04.1979, (ii) SRO copy of Sale Deed dated 21.04.1979, (iii) SRO copy of Sale Deed dated 29.05.1987 and (iv) served copy of plaint in O.S.No.122 of 2016, dated 28.09.2016 on the file of District Munsif Court, Aranthangi and (v) decree dated 26.09.2019 made in A.S.No.117 of 2017 on the file of Sub Court, Aranthangi. Since the application to receive the additional documents filed by appellants, will not help to improve their case, the petition in CMP(MD) No.2879 of 2020 is liable to be dismissed. As there is no merit in the appeal, the same is also liable to be dismissed. 14. Heard the learned counsel appearing for the appellants, the learned counsel appearing for the respondents 1 to 7, the learned counsel appearing for the eight respondent, perused the pleadings, issues framed by the trial Court and oral and documentary evidence adduced and produced by both parties. 15. Admittedly, the Muthaiah Thevar and the first respondent are brothers. The case of the appellants that they got the ancestral properties and the nanja lands were divided by oral partition in the year 1960 and some of the punja lands were enjoyed as common properties and that have not been divided. Therefore, after the death of Muthaiah Thevar, the appellants asked the respondents to divide their shares, but they refused it and they filed the suit for partition. The respondents denied the same and admitted that there were ancestral properties and however, that was divided by oral partition even in the year of 1960 itself. Thereafter, there was no joint family properties and there was no common properties and ancestral properties. After 1960, both the parties sold their respective shares to various persons and Muthaiah Thevar sold most of the properties to the third parties. Thereafter, there was no joint family properties and there was no common properties and ancestral properties. After 1960, both the parties sold their respective shares to various persons and Muthaiah Thevar sold most of the properties to the third parties. Since the respondents kept properties and he enjoyed with his family members, subsequently, they divided the same in the year 1986. Therefore, the suit properties are not liable for partition. It is the absolute properties of the respondents. The eighth respondent submitted that he is the bona fide purchaser for valuable consideration without any notice and therefore, he is entitled for 14 acres, which was purchased from the Muthaiah Thevar. 16. In this case, the relationship of the parties is not in dispute and the existence of ancestral properties, is also not in dispute. The appellants stated that there were nanja and punja lands and admittedly, nanja lands were divided in the year 1960 by way of oral partition and regarding the punja lands, that was not divided either in the year of 1960 or subsequently. Till the death of Muthaiah Thevar, they enjoyed the same as common properties. In the settlement proceedings, the first respondent alone appeared and he has given evidence, since the Muthaiah Thevar is not worldly-wise men. Further the appellants have not established that these properties were also divided in the oral partition. From a reading of the oral and documentary evidence, existence of ancestral properties was admitted and only the appellants say that punja lands were not divided, but the respondents say that punja lands were also divided. Then, it is for the respondents to prove that the punja lands were also divided and they have not specifically stated that what are the survey numbers and what are the properties allotted to the Muthaiah Thevar and what are the properties are allotted to the first respondent and therefore, once it is admitted that there was the ancestral properties and jointly enjoyed the properties, the person, who pleads that it was partitioned, then he has to establish the division of partition already said to have held. 17. 17. Though it is the oral partition, they should establish that what are the properties divided and what are the properties allotted to the Muthaiah Thevar, what are the properties allotted to the first respondent and mutation took place and since there are nanja and punja lands, they should have produced atleast subsequent mutation patta or chitta, adangal and also the payment of kist receipt, tax and other things, etc. The respondents have not proved that the partition has effected regarding punja land in the year of 1960 and the suit properties exclusively allotted to the respondents and also the respondents have to say that what are the properties allotted to the Muthaiah Thevar also. Now, the appellants have submitted some document sought to be received as additional evidence to show that some of the properties stand still commonly in the names of Muthaiah Thevar, first respondent and his wife Muliaiammal and the respondents have also submitted some documents to received as additional evidence to prove their case. Therefore, the documents sought to be received as additional evidence filed by the appellants and the respondents, are vital to decide this case and to substantiate their case. In order to give opportunities to both the parties to mark the additional documents and establish their case by producing oral and documentary evidence, the case has to be remitted back to trial Court for taking additional evidence and decide the case afresh on merits. 18. In the result, the Appeal Suit is allowed. Consequently, the judgment and decree dated 20.04.2011 made in O.S.No.44 of 2004 on the file of the Principal District Court, Pudukottai, are set aside. The petitions to receive the additional documents in C.M.P(MD) Nos.2879 of 2020 and 6467 of 2022 are allowed. The suit is remitted back to the trial Court to take evidence regarding the additional documents. The trial Court is directed to receive the documents mentioned in CMP(MD) Nos.2879 and 6467 of 2011 as additional evidence subject to the admissibility and validity of the documents and to give an opportunity to both parties to take fresh evidence, after marking the documents. The trial Court is directed to decide the suit afresh on its own merits, after taking evidence on both side, in accordance with law. The trial Court is directed to decide the suit afresh on its own merits, after taking evidence on both side, in accordance with law. However, as the suit is pending from the year 2004, the said exercise shall be completed within six months from the date of receipt of a copy of this judgment. Registry is directed to send back the entire records along with the documents produced in CMP(MD) Nos.2879 of 2020 and 6467 of 2022 to the trial Court, after obtaining photostat copy of the same. No costs.