Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 3091 (MAD)

Anbu v. Kasiammal

2022-09-02

P.T.ASHA

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code 1908, praying to set aside the Judgment and Decree of the learned Principal District Munsif of Tirupathur dated 10.04.2014 in O.S.No.309 of 2009 and confirmed by the Judgment and Decree of the learned Subordinate Judge of Tirupathur, Vellore District dated 27.06.2019 in A.S.No.39 of 2014 and allow the above Second Appeal.) 1. The plaintiff is the appellant before this Court challenging the judgment and decree passed by the Sub Court, Tirupathur in A.S.No.39 of 2014, dated 27.06.2019, in and by which, the learned Judge has reversed the judgment and decree passed by the District Munsif, Tirupathur in O.S.No.309 of 2009. 2. The facts that has been culminated in the filing of the above Second Appeal is herein below narrated briefly and the parties are referred to in the same array as before the Trial Court. 3. The plaintiff has filed the above suit for partition and separate possession of his 1/7th share in the suit Item Nos.1 to 6 and for an injunction restraining the defendants 7 and 8 from interfering with the enjoyment of the suit properties by the plaintiff and for an injunction restraining defendants 10 to 13 from transferring and from mutating the revenue records. 4. It is the case of the plaintiff that the suit Item Nos.1 to 4 belonged to his father Chinnathambi by virtue of a partition and Item No.5 belonged to him by virtue of a sale deed dated 26.09.1963. The plaintiff had contended that the suit Item No.5 of the property was therefore a self-acquired property of his father Chinnathambi. On the death of his father on 25.03.2011, the plaintiff and defendants 1 to 6 where equally entitled to the suit property, each being entitled to a 1/7th share. The 7th defendant is the paternal brother of the plaintiff's father had claimed a right over Item No.5 and attempted to alienate the same to third parties. The 8th defendant, who is the son of the 7th defendant also tried to create encumbrance in respect of the suit property. 5. Considering the fact that the appeal is restricted only to Item No.5 of the property, the written statement of the 7th defendant is alone being extracted in a nutshell herein below. The 8th defendant, who is the son of the 7th defendant also tried to create encumbrance in respect of the suit property. 5. Considering the fact that the appeal is restricted only to Item No.5 of the property, the written statement of the 7th defendant is alone being extracted in a nutshell herein below. The 7th defendant would submit that in respect of Item Nos.1 to 4 and other properties, a suit in O.S.No.64 of 1985 was filed, in which, he was allotted an extent of 65 cents in Survey No.46/6. Thereafter, in the year 1986, there was an oral partition in the presence of the Panchayathars in the property measuring 77 cents in S.No.13/3 was allotted to his share and an extent of 1.23 acres in favour of his brother Chinnathambi, the father of the plaintiff. 6. He would further submit that the extent of 77 cents in S.No.13/3 is not separate property of Chinnathambi, but it was the property of the joint family, which has been allotted to the share of the 7th defendant. In the earlier suit, O.S.No.64 of 1985 this property was not included. The Trial Court had framed the following issues :- 7. The plaintiff has examined himself as P.W.1 and one Gopal and Gunasekaran as P.W.2 and P.W.3 and marked Ex.A1 to A2. On the side of the defendant, the 1st defendant examined himself as D.W.1, 2nd defendant as D.W.2, 8th defendant as D.W.3 and one Venu as D.W.4 and Ex.R1 to R9 were marked. 8. The Trial Court decreed the suit with reference to Item Nos.1 to 4 alone. Aggrieved by the same, the defendant had filed A.S.No.39 of 2014 on the file of the learned Sub Court, Tirupathur. The Appellate Court reversed the judgment and decree of the Trial Court. Challenging the same, the plaintiff is before this Court. 9. Heard the learned counsel for the appellant and perused the materials on record. 10. The Appellate Court had taken note of the admission of D.W.1 regarding the oral partition and also the evidence of D.W.2, who is none other than the brother of the plaintiff, who had clearly and cogently spoken about the oral partition that had taken place in the year 1986, under which, Item No.5 of the schedule of property was allotted to the 7th defendant and the remaining 1.23 acres was allotted to the father of the plaintiff. 11. 11. The Tribunal has also taken note of the admission of the plaintiff that his father Chinnathambi did not have any independent source of income and was only dependent on the land, which was then joint family property and the property which is purchased in his name in the year 1963 was only from the income earned from this joint family property. Therefore, it cannot be considered as self-acquired property. That apart, all the brothers were enjoying the property in question till the year 1985 when the suit had been filed. 12. Further, the independent witness D.W.4 had also deposed that in Item No.5 of the property, 77 cents was allotted to the share of 7th defendant and the remaining 1.23 acres was allotted to Chinnathambi. Revenue records have also been mutated in the name of the 7th defendant. In the circumstances, the judgment passed by the Appellate Court does not suffer from any perversity and no substantial question of law has been made out by the plaintiff to interfere with. 13. Accordingly, the Second Appeal is dismissed. No costs. Consequently, the connected civil miscellaneous petition is closed.