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2025 DIGILAW 113 (MAD)

Durairaj v. Mariammal (died)

2025-01-06

V.SIVAGNANAM

body2025
JUDGMENT : The Second Appeal has been filed against the Judgment and Decree passed in A.S.No.50 of 2003 dated 08.10.2003 on the file of the Sub-Court, Sankarankoil, confirming the Judgment and Decree passed in O.S.No.194 of 2001 dated 23.04.2003 on the file of the Additional District Munsif Court, Sankarankoil. 2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court. 3. The plaintiffs are the appellants. The plaintiffs filed the suit for declaration and permanent injunction. The Trial Court dismissed the suit. Aggrieved by this judgment and decree, the plaintiffs preferred an appeal before the Sub Court, Sankarankovil. Upon consideration of evidence on record, the First Appellate Court confirmed the finding of the Trial Court and dismissed the suit with costs. Aggrieved by this judgment and decree, the plaintiffs preferred the present second appeal. 4. The case of the plaintiffs is that the plaint schedule properties are originally owned by Ganapathy Kudumban and Anachi. They have purchased the said property by way of a sale deed dated 11.07.1942 and they partitioned the property orally and enjoyed the same separately. Anachi, by way of oral partition deed, got 1 acre 53 cents. The said Anachi had three daughters, namely, Vadakasi Ammal, Maruthi Ammal and Karuppayee Ammal. After the death of the said Anachi, her three daughters orally partitioned the property and enjoyed separately. Vadakasi Ammal had one daughter by name, Mariammal. Mariammal had one son by name, Durai Raj, who is the first plaintiff and one daughter by name, Muthukani. Maruthi Ammal had three daughters by name, Mariammal, Muthumadathi and Ganapathiammal, who are the defendants. Karuppayee Ammal had two daughters by name, Chinnathai, who is the second plaintiff and Ranjitham. The plaint schedule properties were allotted by way of oral partition to the plaintiffs. Since the defendants disputed the title and interfered with the possession and enjoyment of the plaintiffs, they filed the suit for injunction and declaration with regard to the plaint schedule property. 5. The defendants contested the suit and filed the written statement. In the written statement, the defendants admitted that the suit property has been purchased by Ganapathy Kudumban and Anachi on 11.07.1942 by way of a sale deed dated 11.07.1942. The defendants have not disputed the oral partition between Ganapathy Kudumban and Anachi and they disputed the subsequent alleged partition between the daughters of Anachi Ammal. In the written statement, the defendants admitted that the suit property has been purchased by Ganapathy Kudumban and Anachi on 11.07.1942 by way of a sale deed dated 11.07.1942. The defendants have not disputed the oral partition between Ganapathy Kudumban and Anachi and they disputed the subsequent alleged partition between the daughters of Anachi Ammal. Since they are jointly enjoyed the property, in the absence of notice to the defendants, the plaintiffs got patta in their name, for that, the defendants objected. Without sending any notice to the defendants and without knowledge to the defendants, the plaintiffs obtained patta and therefore, the plaintiffs cannot claim right over the plaint schedule property and the plaintiffs are not entitled to the relief of declaration of title over the plaint schedule property. Hence, the defendants pleaded to dismiss the suit. 6. On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration:- 1. Is it correct that the first plaintiff is entitled to the plaint 1 st schedule property? 2. Whether the relief of declaration and permanent injunction sought for by the plaintiffs in respect of the plaint 1 st schedule property is available to the plaintiffs? 3. Is it correct that the second plaintiff is entitled to the plaint 2 nd schedule property? 4. Whether the relief of declaration and permanent injunction sought for by the plaintiffs in respect of the plaint 2 nd schedule property is available to the plaintiffs? 5. To what other relief, the plaintiffs are entitled to? 7. Before the Trial Court, on the side of the plaintiffs, the first plaintiff himself examined as P.W.1 and examined one Rajendran as P.W.2 and marked eight documents as Ex.A1 to Ex.A8. On the side of the defendants, the second defendant herself examined as D.W.1 and marked four documents as Exs.B1 to B4. 8. On consideration of the oral and documentary evidence adduced by the respective parties and the submission made, the Trial Court found that the property is not partitioned between the parties and they are enjoying the property jointly and therefore, the plaintiffs are not entitled for the relief of declaration and dismissed the suit. Aggrieved over the same, the plaintiffs preferred an appeal before the Sub Court, Sankarankovil. Aggrieved over the same, the plaintiffs preferred an appeal before the Sub Court, Sankarankovil. The First Appellate Court also upon consideration of evidence on record confirmed the judgment and decree of the Trial Court and dismissed the appeal. Aggrieved over the same, the plaintiffs filed the present second appeal before this Court. 9. While admitting the second appeal, this Court has formulated the following substantial questions of law:- “1. Whether the Courts below are erred in holding that the oral partition which took place 30 years ago was not proved since there is no evidence to show that the persons who were present at the time of partition are alive? 2. Whether both the Courts below failed to consider Exs.A2, A3, A4 and A7 patta granted to the parties to whom lands were allotted? 3. Whether both the Courts below failed to consider Exs.A.5, A.6 and A.8 which show that the appellants have paid tax receipts to the lands? 4. Whether both the Courts below failed to note that the respondents have not produced any records to show that they paid tax to the suit property? 5. Whether both the Courts below failed to note that adverse inference ought to have drawn against the respondents since they did not produce any documents to prove their title, possession and enjoyment? 6. Whether both the Courts below failed to note that when the respondents have not produced any documents to prove their title and possession, the suit filed by the plaintiff ought to have been decreed?". 10. The learned counsel appearing for the appellants/plaintiffs submitted that the Trial Court as well as the First Appellate Court failed to consider the documents filed by the plaintiffs recognizing their separate enjoyment and the patta has been issued by the Revenue Department, which was marked as Exs.A1 to A4 and also failed to consider the documents viz., payment of receipt filed by the plaintiffs Exs.A5 to A8. He further submitted that the Trial Court as well as the First Appellate Court failed to consider the evidence of P.W.1 admitting the oral partition between Ganapathy Kudumban and Anachi. Under these circumstances, the judgment of the Trial Court as well as the First Appellate Court is erroneous and not considering evidence on record and hence, the learned counsel is seeking to allow the second appeal and decree the suit. 11. Under these circumstances, the judgment of the Trial Court as well as the First Appellate Court is erroneous and not considering evidence on record and hence, the learned counsel is seeking to allow the second appeal and decree the suit. 11. The learned counsel for the respondents/defendants supported the judgment and decree of the First Appellate Court and the Trial Court. He further contended that the Trial Court as well as the First Appellate Court on proper appreciation of evidence held that the plaintiffs are not entitled to the relief of declaration and in the absence of proof of oral partition between the parties the plaintiffs are not entitled for declaration. There is no ground for interference of the finding of the First Appellate Court and the Trial Court. Hence, he pleaded to dismiss the second appeal. 12. I have considered the matter in the light of the submissions made by the learned counsel on both sides and perused the materials available on records carefully. 13.On perusal of the records, it is noticed that the property was originally purchased by Ganapathy Kudumban and Anachi by way of oral sale deed dated 11.07.1942, which is evidenced by Ex.A1 sale deed dated 11.07.1942. This fact is not disputed. The contention that the Ganapathy Kudumban and Anachi orally partitioned the above said property purchased by them and each got 1 acre 53 cents and thus, Anachi got 1 acre 53 cents is also not disputed by the parties. It is seen that Anachi had three daughters namely, Vadakasiammal, Maruthi Ammal and Karuppayee Ammal. Vadakasi Ammal had one daughter, namely, Mariammal. The first plaintiff Durairaj is the son of the said Mariammal. The second plaintiff is the daughter of Karuppayee Ammal. The defendants are the daughters of the Maruthi Ammal. The above said facts are not disputed. The daughters of the Anach, viz., Vadakasi Ammal, Maruthi Ammal, Karuppayee Ammal are each entitled to 51 cents. In the 51 cents, their legal heirs are entitled. The fact is admitted by the parties. Under these circumstances, the plaintiffs filed the suit for declaration of title over the plaint schedule property. It is also not disputed that the plaint schedule property was allotted to Anachi and her daughters Vadakasi Ammal, Maruthi Ammal and Karuppayee Ammal are entitled to the same. The fact is admitted by the parties. Under these circumstances, the plaintiffs filed the suit for declaration of title over the plaint schedule property. It is also not disputed that the plaint schedule property was allotted to Anachi and her daughters Vadakasi Ammal, Maruthi Ammal and Karuppayee Ammal are entitled to the same. Further, there is no evidence to support the pleading that after the oral partition between Ganapathi Kudumban and Anachi, the legal heirs of Anachi partitioned the property allotted to Anachi. The plaintiffs pleaded that orally they partitioned the property and they are enjoying separately. To support their arguments, they produced the patta issued by the Revenue Department Exs.A2 to A4. Since the patta is only recognizing the title and not a document for declaring the title of a person, the Trial Court in its Judgment, in para 13 and 14 has observed the said fact and considered and found that the parties are jointly entitled to the property and there was no evidence for oral partition as stated by the plaintiffs. 14. On perusal of the records, it is noticed that there is no clear evidence about the oral partition between the legal heirs of Anachi as stated by the plaintiffs. The evidence shows that the parties are enjoying the properties for their convenience and there is no partition as pleaded by them. Under these circumstances, the Trial Court rightly held that the parties are jointly entitled to the properties. Therefore, declaration with regard to the plaint schedule properties cannot be granted in favour of the plaintiffs. Therefore, the Trial Court dismissed the suit. The First Appellate Court also rightly found that the plaintiffs failed to prove the alleged oral partition between the parties. Under these circumstances, the First Appellate Court confirmed the judgment and decree of the Trial Court. I find no ground for interference. The parties are entitled to partition and liberty is given to the parties to file the suit for partition and workout their remedy in the manner known to law. The substantial questions of law are answered accordingly. 15. In the result, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.