High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 29.3.2007Coram:The Honourable Mr.Justice J.A.K.SAMPATH KUMARA.S.No.850 of 19921.Rengaswami(deceased)2.Pappammal3.R.Murugasamy ..Appellants/PlaintiffsAppellants 2 and 3 brought on recordas Lrs of the deceased sole appellant as per order of court dated 28.11.2006 made in C.M.P.No.10137 of 2006.-vs-1.Ramaswami (Died)2.Pappayyammal3.R.Nallasivam The death of R1 recorded vide order of Court dated 18.7.2006 made in A.S.No.850 of 1992.R2 and R3 are Lrs of the deceased first respondent videorder of court dated 18.7.2000.4.The Assistant Director of Survey and Land Records, Erode, Periyar District...Respondents (Respondents)First Appeal filed Under Section 96 of the Civil ProcedureCode against the Judgment and decree dated 14.8.1992 in O.S.No.382of 1987 on the file of Subordinate Court, Erode, Periyar District. For Appellants:- Mr.K.Doraisamy, Senior Advocatefor M/s.S.T.S.Murthi and R.Santhanam For Respondents:- for R1 :-diedfor R2 and R3:-Mr.S.Sethuratnam, Senior Advocatefor Mr.M.Duraisamy for R4:- No appearance https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThis appeal is filed against the Judgment and decree dated14.8.1992 in O.S.No.382 of 1987 on the file of the First AdditionalSub Court, Erode in and by which, the learned Sub Judge afteranalysing the evidence in depth found that the plaintiff is notentitled to suit claim and accordingly dismissed the suit. 2. For convenience, the parties are referred as arrayed in theOriginal Suit. The brief facts of the case are as follows:-3. Plaintiff states as follows:-3.1. The plaintiff is the elder brother of the 1st defendant.Their father is one Muthusami gounder. There was a registeredpartition between the above said Muthusami gounder and his brotherson 30.10.1956. In pursuance of the said partition deed, theplaintiff and first defendant became entitled to specific portionsafter the death of Muthusami gounder. The plaitniff and the firstdefendant had effected a oral partition in or about the year 1970and that they are in possession and enjoyment of their respectiveportions.3.2. There arose misunderstandings between the plaintiff andthe family of the first defendant recently. The second defendantwho is the wife and the 3rd defendant who is the only son of the 1stdefendant are instigating the 1st defendant to cause obstructions tothe plaintiffs peaceful possession and enjoyment of the suit 'A'Schedule properties. On 15.9.1987, the defendants 1 to 3 armedwith deadly weapons and hirelings made attempts to disturb thepeaceful possession and enjoyment of the plaintiff in the 'A'Schedule properties. But by the timely intervention of theneighbours, the plaintiff was able to drive them away. Thedefendants 1 to 3 went away challenging that they would gather moremen and material and would cause obstructions by unlawfully,trespassing into the suit 'A' schedule properties. If they carryout their threat into action, then the plaintiff would be put tomuch loss and hardship in his peaceful possession and enjoyment ofthe plaint 'A' schedule properties.3.3. In case, if this court comes to the conclusion that theoral partition set up by the plaintiff as above is not acceptable,the plaintiff prays that a decree for partition of the plaint 'B'Schedule properties may be granted in the alternative with a viewto avoid further litigation. Hence the suit.4.Written statement of 3rd defendant adopted by D1 and D2reads as follows:- 4.1. It is admitted that there was an oral partition by metes https://hcservices.ecourts.gov.in/hcservices/ and bounds, not in 1970, but long before that. After thepartition, the plaintiff and the first defendant took possession ofthe respective plots that fell to their share, and have been inpossession and enjoyment of the same as the exclusive ownersthereof. So much so, in the last resurvey, which was based onactual possession, the plots in the possession and enjoyment of theparties have been separately demarketed, designated with new surveynumbers and pattas issued to the respective parties in possession.4.2. The plaint 'A' Schedule and plans which purport to showthe plots in the possession and enjoyment of the plaintiff arewrong and misleading in every respect. 4.3. By giving such false particulars, the plaintiff isscheming to grab all the best possible plots and leave the nextbest to the defendants 1 to 3. 4.4. And in as much as there has already been a partitionbetween the plaintiff and the first defendant, the alternativerelief of partition also is not available to the plaintiff. Hence,the suit is liable to be dismissed.5. Plaintiff examined as P.W.1. One Thiru.Nallasamy examinedas P.W.2. Ex.A.1 to A.13 were marked on the side of the plaintiff.3rd defendant examined as D.W.1. Exhibits B1 to B11 were marked onthe side of the defendants to confront the claim of the defendant.6. The lower court after analysing the evidence in depth foundthat the plaintiff is not entitled to suit claim and accordinglydismissed the suit.7. The present appeal is filed against such finding.8. Heard Mr.K.Doraisamy, learned Senior Advocate for theappellants and Mr.Sethuratnam, learned Senior Advocate for therespondents.9. Upon hearing the rival claims the points for considerationare:-1)Whether the plaintiff is in possession of the suit propertyviz., 'A' Schedule property as on date in pursuance of the oralpartition alleged by him?2)Whether the defendants are in enjoyment of the properties asstated in the written statement, in pursuance of the oral partitionbetween the parties to the suit.3)Whether the plaintiff is entitled for injunction in respectof the suit property viz., A Schedule Property? https://hcservices.ecourts.gov.in/hcservices/ 4)Whether the plaintiff is entitled for partition of theproperties of one Muthusamy Gounder, who is the father of theplaintiff and first defendant, as the properties of MuthusamyGounder were already orally partitioned and enjoyed by theplaintiff and the first defendant independent in their own right?5)Whether the finding of the lower court in dismissing thesuit is in order?10.Point No.1:- 10.1.Admittedly, the suit property belongs to one MuthusamyGounder. Plaintiff and the first defendant are the sons ofMuthusamy Gounder. Even according to the plaint pleadings, theproperties of Muthusamy Gounder were partitioned by metes andbounds orally between the plaintiff and the first defendant andthey were enjoying independently. 10.2. Learned counsel for the appellant would contend that ASchedule properties were allotted to the plaintiff in pursuance ofthe oral partition and were enjoying the same and that thedefendants are trying to encroach upon 'A' Schedule propertynecessitated the plaintiff to file a suit for declaration andinjunction in respect of 'A' Schedule property.10.3. Learned counsel for the respondents though admittedabout the oral partition between the plaintiff and the firstdefendant in respect of the properties of late Muthusamy Gounderwould contend that 'A' Schedule property was not allotted to theplaintiff in pursuance of the said oral partition. 10.4. The learned counsel for the respondents would furthercontend that the plaintiff is not in enjoyment of the 'A' Scheduleproperty. Learned counsel for the respondents relied on the roughsketches and contended that the plaintiff and the defendants are inenjoyment of the respective portions in the ground reality as perthe oral partition reflecting in the sketches and therefore, theplaintiff is not entitled for any relief as prayed for. Therespective enjoyment in the ground reality as per the recital foundin the sketches filed by the respondents/defendants was notdisputed by the learned counsel for the appellant/plaintiff.11. I take note of the rough sketches filed by the learnedcounsel for the respondents/defendants to deal with the facts onhand. The said rough sketches since admitted by the learnedcounsel for the appellant, the same shall form part of the record.The said Exhibit is numbered as Ex.C.1 to Ex.C.5. https://hcservices.ecourts.gov.in/hcservices/

12. As per the plaint pleading, the plaintiff claims to be inpossession of properties referred in red colour in Exhibit A1 to A5respectively with regard to the land in Survey Nos.485, 486, 487,431 and 489 respectively. At the time of argument, learned counselfor the appellant/plaintiff conceded that the plaintiff is not inpossession of the land marked in red colour referred in Ex.A.1 toA5. As per the admitted document by the parties, as per Ex.C.1 toC.5, the plaintiff is in possession of the land marked in greencolour in the said exhibits. Similarly, defendants are inpossession and enjoyment of the land marked in yellow colour in thesaid exhibits. Admittedly, the suit is for declaration of title inrespect of red portion of land in favour of the plaintiff as perEx.A.1 to A.5. The plaintiff has also prayed for permanentinjunction in respect of land marked in red colour in the saidexhibits claiming to be in possession of the same.13. It is proved that the plaintiff is not in possession ofthe land marked in red colour reffered in Ex.A.1 to Ex.A.5.14. In the ground reality, the plaintiff and the defendantsare in possession of lands marked in green colour and yellow colourrespectively referred in Ex.C.1 to Ex.C.5. It is not the case ofthe appellant/plaintiff that in the ground reality afterinstitution of the suit, the plaintiff was dispossessed of the landmarked in red colour in ex.A.1 to Ex.A.5 by the defendants and thatthe plaintiff presently is in possession of the land marked ingreen colour referred in Ex.C.1 to Ex.C.5. The appellant now seeksrelief in respect of the land marked in green colour referred inEx.C.1 to Ex.C.5. The relief now asked for is contra to thepleadings in the plaint. Further, there is no petition filedseeking amendment of the prayer.15. Whereas, the learned counsel for therespondents/defendants rightly pointed out that the plaintiff andthe defendants are in enjoyment of the respective portions of theland allotted by oral partition entered into between them earlierto 1970. It is also admitted that the land under dispute wasresurveyed in the name of the plaintiff and the defendants as perthe enjoyment of land in the light of Ex.C.1 to Ex.C.5. 16. It is not the case of the plaintiff that the land wasresurveyed in the name of the plaintiff and the defendants not inthe light of Ex.C.1 to Ex.C.5. 17. The ground reality is that the plaintiff and thedefendants are in enjoyment of the land respectively as per Ex.C.1to Ex.C.5 for more than 35 years. Taking note of such fact, therevenue department has also resurveyed the land in the name of theplaintiff and the defendants. https://hcservices.ecourts.gov.in/hcservices/

18. The only objection raised by the learned counsel for theappellant/plaintiff is that the land was re-surveyed without givingnotice to the plaintiff. He also relied on the decision reported inthe case of STATE OF MADRAS BY COLLECTOR, RAMNAD VS KASTHURI AMMALAND OTHERS (1974 TNLJ 145) in support of his contention. Learnedcounsel for the respondents/defendants confronted the argument ofthe learned counsel for the plaintiff/appellant and submitted thatthe principle laid down in the said decision is not applicable tothe facts on hand as the land was resurveyed in the name of theplaintiff and defendants according to the ground reality ofenjoyment of their respective land. 19. Admittedly, the land under dispute was resurveyed in thename of the plaintiff and the defendants after due publication inthe Gazette. The land was resurveyed in the name of the plaintiffand the defendants only on the basis of the enjoyment of the landby the plaintiff and the defendants on the date of resurvey.Further, the plaintiff has not placed any material to show that theplaintiff was in enjoyment of the land marked in red colourreferable to Ex.A.1 to Ex.A.5 as per oral partition. There isabsolutely no record to show that the plaintiff was ever inenjoyment of the land marked in red colour referred to in Ex.A.1 toEx.A.5. In such view of the fact, since the land under dispute wasresurveyed in the name of the plaintiff and the defendants on thebasis of their respective possession and enjoyment, it is not opento the plaintiff to question the validity of re-survey of the landunder dispute. Therefore, I am of the considered view that thesaid decision is not applicable to facts on hand. 20. The lower court dealt this point in that line and rightlyrejected the contention of the plaintiff. I do not find anyillegality or impropriety in the order of the lower court. Thefinding of the lower court is in order. Hence, this point isanswered against the plaintiff.21. Point No.2:- In view of the finding rendered in PointNo.1, this point is answered in favour of the defendants. 22. Point No.3:- In view of the fact that the plaintiff is notin enjoyment of 'A' Schedule property as on date, he is notentitled for any injunction in respect of the same against thedefendants. Hence, this point is answered against the plaintiff.23. Point No.4:-In view of the finding rendered in Points 1 to3, plaintiff is not entitled for partition of the suit property andhence this point is answered against the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

24. Point No.5:- In view of the finding rendered in Points 1to 4, I am of the considered view that the findings of the lowercourt is in order and does not require any interference.Accordingly, the appeal fails and the same is dismissed. Theparties have to bear their respective costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nvsriTo1. The Subordinate Court, Erode, Periyar District.2. The Record Keeper,VR Section,High Court, Madras.1 cc to Mr.M. Duraiswamy, Advocate, sr. 200081 cc to Mr.S.T.S. Murthi, Advoate, Sr. 20100 A.S.No.850 of 1992kk 20/4