High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30.04.2009CoramThe Honourable Mr.Justice S.RAJESWARANA.S.No.332 of 20001. Nallasivam S/o Shanmugha Gounder 240, Sathy Road, Veerappanchatram, Erode 4 Erode Taluk & District.2. Vasantha Devi W/o Nallasivam, 240, Sathy Road, Veerappanchatram, Erode 4, Erode Taluk & District.3. Manickam S/o Ramaswamy Perumapalayam, Modakkurichi Village, Erode Taluk.4. Duraiswamy S/o Kulandaiswamy Gounder, Vellottamparappu, Punjai Kolanalli Village, Erode Taluk.5. Sundaram S/o Kumarappa Gounder, Vaduganur, Punjai Kolanalli Village, Vellottamparappu, Erode Taluk. ... Appellants/Defendants 9 to 13 Vs.1. Subramaniam S/o Natchimuthu, 27, Jevanandam Street, Molagoundanpalayam, Railway Colony Post, Erode....Ist Respondent/Plaintiff https://hcservices.ecourts.gov.in/hcservices/

2. Karuppanan S/o Nallappa Gounder3. Ramaswamy S/o Nallappa Gounder4. M.V.Subramaniam S/o Velappa Gounder5. Pavammal W/o Samiappan6. Chengodan S/o Karuppana Gounder7. Palaniswamy S/o Sengodan ... Respondents 2 to 7 /Defendants 2 to 7(Respondents 2 to 7 are residing at Naduparai thottam,Molangoundanpalayam, Railway Colony, Fort, Erode-2.) This Appeal has been filed under Sec.96 of C.P.C. against thejudgment and decree passed by the Principal Subordinate Judge,Erode in O.S.No.141 of 1994 dated 14.07.2000. For Appellants 1 &2 : M/s.A.K.Kumaraswamy Appellants 3 to 5 M/s.A.R.Nixon For respondents 1, 2, 4,5 & 7 : M/s.T.MurugamanickamR3 & R6 (died) ***** JUDGMENTThis Appeal is filed against the judgment and decree passed bythe Principal Subordinate Judge, Erode in O.S.No.141 of 1994 dated14.07.2000.2. The defendants 9 to 13 in O.S.No.141 of 1994, on the fileof the Principal Subordinate Judge, Erode, are the appellantsbefore this Court. They are aggrieved by the judgment and decreeof the trial court dated 14.7.2000 decreeing the suit filed by theplaintiff in O.S.No.141 of 1994, who is the first respondent beforethis Court.3. The facts are as follows:The first respondent herein, as plaintiff, filed O.S.No.141 of 1994for partition of the suit schedule property, for permanentinjunction and also for cost. According to the firstrespondent/plaintiff, the suit schedule properties are situated in https://hcservices.ecourts.gov.in/hcservices/ Erode measuring a total extent of 3.66 cents. Initially, the suitschedule properties were owned by Karuppanna Gounder and KuppannaGounder equally; when both of them were in possession and enjoymentof the suit schedule property, Karuppanna Gounder sold hisundivided half share i.e. 1.83 cents to his son Nachimuthu Gounderby a sale deed dated 26.3.1942. The remaining half share should goto the legal heirs of Kuppanna Gounder. The plaintiff is the sonof Nachimuthu Gounder. Accordingly, both the plaintiff anddefendants 1 to 8 are the joint owners of the properties. Theplaintiff is entitled to half share and defendants 1 to 8 areentitled to the remaining half share.4. The suit has been filed for partition as all of them couldnot enjoy the property jointly. It was also stated by theplaintiff in the plaint that defendants 1 to 8 in the suit soldtheir undivided share to the defendants 9 to 13 and therefore,defendants 9 to 13 were added as parties in the suit.5. The suit was resisted by defendants 2 and 3 by filing awritten statement wherein it was stated that the total extent ofthe suit schedule property shown in the plaint as 3.66 cents is notcorrect. According to them, the plaintiff's father NachimuthuGounder purchased 1.0 acre and 83 cents from the total extent andthereafter on 7.6.1982, he settled the property in favour of theplaintiff. The property is being enjoyed by all of them accordingto their convenience and the western side of the property is inpossession of defendants 2 and 3. They also sold their share tothe defendants 9 to 13 and therefore, they have nothing to do withthe suit and the suit is to be dismissed. A similar writtenstatement was filed by the defendants 4, 5 and 7.6. The 9th defendant filed a separate written statement whichwas adopted by defendants 10 to 13. According to the 9th defendant,in 1956 itself, Karuppanna Gounder and Kuppanna Gounder partitionedthe suit schedule properties. Out of the total extent of lands,some of the lands are good lands and some others contained rocks.Therefore, Karuppanna Gounder and Kuppanna Gounder partitioned theproperties by taking into account the good lands and rocky landsand accordingly, Kuppanna Gounder was allotted 1.95 acres andKaruppanna Gounder was allotted 1.73 acres at the time ofpartition. After partitioning the property, a fence was also alsoput up and both of them enjoyed their separate properties. Afterthe death of Kuppanna Gounder, the legal heirs of Kuppanna Gounderpartitioned their extent of 1.95 acres by a registered partitiondeed. According to the 9th defendant, after purchasing the propertyfrom the legal heirs of Kuppanna Gounder, he has spent a sum ofRs.50,000/- for developing the lands which was well known to theplaintiff. Having kept quiet and even after knowing that theproperty was purchased by defendants 9 to 13, the plaintiff did notobject to the development of the lands and therefore, the suit isto be dismissed.7. The trial court on the basis of the above pleadings framedthe following issues: https://hcservices.ecourts.gov.in/hcservices/

1.Is it true that there was a partition in 1959 ?2.Whether the suit is barred by limitation ?3.Whether the suit is bad for non-joinder of necessary parties ?4.Whether the plaintiff is entitled to a decree of permanentinjunction ?5.Whether the plaintiff is entitled to the relief as prayed for ?6.To what other reliefs ?8. The trial court held that there was no partition in 1959 ascontended by defendants 9 to 13 and the suit is not barred bylimitation. It further held that the suit is also not bad forjoinder of necessary parties and the plaintiff is entitled to therelief as prayed for. Accordingly, the trial court granted apreliminary decree in favour of the plaintiff by allotting oneshare (half share) to the plaintiff in the total extent of the suitschedule property. The trial court also granted a decree ofpermanent injunction restraining the defendants 9 to 13 fromaltering the physical features of the suit schedule property tillthe properties were divided permanently. Aggrieved by the judgmentand decree of the trial court, the above appeal has been filed bydefendants 9 to 13 in the suit.9. Heard the learned counsel for the Appellants and thelearned counsel for the first respondent/plaintiff. I have alsogone through the entire documents available on record.10. The learned counsel for the appellants submits thatExhibit A1 – Sale deed dated 26.3.1947 was executed before the oralpartition, but, the settlement deed dated 7.6.1982 (Ex.-A2)mechanically followed the description of property found in Ex.-A1losing sight of the oral partition that has taken place in theintervening time. Therefore, according to him, the reliance placedby the trial court on Ex.A2 is misconceived and therefore, thefindings of the trial court that there was no partition in the year1959 are not correct and are liable to be set aside. He furtheradds that the plea of adverse possession has not been properlyadverted to by the trial court, in the light of the judgmentreported in A.I.R. 1972 MAD 467 (Imbramsa Rowther (Minor) andothers Vs S.K.Meerasa Rowther and others). He further urges thatthe plaintiff knows very well that the property was purchased bydefendants 9 to 13, who developed the property by levelling theplots with bulldozers for the purpose of laying the plots as Housesites and selling them. Under such circumstances, it is a clearcase of the plaintiff being estopped from denying the title of thedefendants 9 to 13 or their vendors to the specific plots sold. Hefurther states that there is a serious lacuna in the description ofthe property and therefore, the plaintiff/first defendant could not https://hcservices.ecourts.gov.in/hcservices/ be given the relief of partition on the basis of the description ofthe suit property as it stands now.11. Per contra, the learned counsel for the firstrespondent/plaintiff submits that abundant evidence was availablebefore the trial court to come to the conclusion that there was nopartition in the year 1959 as contended by the 9th defendant. Hefurther submits that no proof was let in to show that thedescription of the suit property is wrong and even otherwise, wrongdescription of the property will not stand in the way of theplaintiff in getting his relief. He further submits that there isno merit in the argument of the learned counsel for the appellantson the ground of promissory estoppel, adverse possession and claimof ouster against the plaintiff. He further pointed out that onlythe appellants 1 and 2 (defendants 9 and 10) alone argued theappeal through their counsel and the other appellants 3 to 5(defendants 11 to 13) have not come forward with any arguments andtherefore, it is deemed that they are not contesting the appeal.Hence, he prayed for the dismissal of the appeal.12. I have considered the rival submissions carefully withregard to facts and citation.13. The only issue that arises for consideration is whetherthe trial court has rightly decreed the suit or whether thejudgment and decree of the trial court is to be interfered with ornot.14. Before the trial court, the plaintiff was examined himselfas P.W.1 and Exhibits A1 to A7 were marked on his behalf. The 9thdefendant examined himself as D.W.1 and one Palaniswamy wasexamined as D.W.2 (7th defendant) and exhibits B1 to B4 were markedon their behalf. The report of the Commissioner and his sketchwere marked as Exhibits C1 and C2.15. It is not in dispute that the suit schedule propertieswere owned by Kuppanna Gounder and Karuppanna Gounder and both ofthem owned and possessed the lands jointly. It is also not indispute that the plaintiff is claiming through Karuppanna Gounderand defendants 1 to 8 are the legal heirs of Kuppanna Gounder.Karuppanna Gounder sold his undivided share in the property to hisson Nachimuthu gounder on 26.3.1942, by a sale deed, which ismarked as Ex.A1. Thereafter, Nachimuthu Gounder settled the verysame property to his son Subramaniam (plaintiff) by executing aSettlement deed dated 7.6.1982 (Ex.A2). According to defendants 1to 8, they partitioned the property among themselves on 24.12.1959,which is marked as Ex.B1. It is also not in dispute thatdefendants 1 to 8, who are the legal heirs of Kuppanna Gounder soldtheir properties to the defendants 9 to 13. The case of theplaintiff is that there was no partition between Kuppanna Gounderand Karuppanna Gounder at any point of time. But, the case ofdefendants 9 to 13 was that both Karuppanna Gounder and KuppannaGounder partitioned the property even before 1959 and only https://hcservices.ecourts.gov.in/hcservices/ thereafter, that too, on the basis of Ex.B1, the legal heirs ofKuppanna Gounder partitioned their share and enjoyed the same.Their share was purchased by defendants 9 to 13 and therefore,according to defendants 9 to 13, the plaintiff could not claim therelief of partition as already there was a partition even before1959 between Kuppanna Gounder and Karuppanna Gounder. It is alsocontended by defendants 9 to 13 that as the legal heirs as well asKuppanna Gounder enjoyed the property separately which was wellknown to the plaintiff, the doctrine of ouster and the principlesof adverse possession would dis-entitle the plaintiff from claimingany relief. Further, they pointed out that as there was noobjection raised by the plaintiff to the purchase made by thedefendants 9 to 13 and their development of the lands, theplaintiff is estopped from filing the suit for partition.16. It is not in dispute that the defendants 1 to 8 did notcome forward to continue the suit proceedings even though a writtenstatement has been filed. It is also not in dispute that thedefendant 7 was examined on behalf of defendants 9 to 13 as D.W.2.17. The trial court has rightly adverted to the fact that asdefendants 9 to 13 purchased the property from the legal heirs ofKuppanna Gounder, they would not be in a position to know about theprevious partition and enjoyment of the original owners and theirfamily members. Therefore, the trial court placed its reliance onD.W.2 who is the 7th defendant and who is the grandson of KuppannaGounder. D.W.2 in his cross examination stated that he did notknow that he was the 7th defendant in the suit even though he knewthat the suit was filed by the plaintiff. But, he filed a writtenstatement in the suit, wherein he admitted that there was noprevious partition. Thus, what was spoken to by D.W.2 in his oralevidence is contrary to what was stated in his pleadings.Therefore, the trial court has correctly rejected his evidence.18. Ex.A1 will prove that Karuppanna Gounder sold 1.83 acresof land to his son Nachimuthu Gounder. A perusal of Ex.A1 willshow that there was no partition between Kuppanna Gounder andKaruppanna Gounder and they enjoyed the property jointly. This wasalso confirmed by Ex.A2 which is the Settlement deed executed byNachimuthu Gounder in favour of the plaintiff Subramaniam. Thoughit was argued by the learned counsel for the appellants that Ex.A2does not show the real facts as it simply copied Ex.A1 with regardto the details of the property, there was no evidence let in, insupport of this contention. In fact, the written statement filedby D1 and D8 would also show that there was no prior partition andthe fore-fathers jointly enjoyed the property according to theirconvenience.19. Therefore, I am concurring with the findings of the trialcourt that there was no prior partition before 1956 as contended bydefendants 9 to 13.20. I am also agreeing with the findings of the trial courtwith regard to Ex.B1 as it does not clearly establish that there https://hcservices.ecourts.gov.in/hcservices/ was a partition between the eldest members of the family andtherefore, I am also of the considered view that Ex.B1 will notprove the case of the defendants 9 to 13 that there was a priorpartition between Kuppanna Gounder and Karuppanna Gounder.21. After going through the entire evidence let in on behalfof the defendants, i.e. Ex.B1 and B4, I am of the considered viewthat they do not establish the case of defendants 9 to 13 and onceit is proved that there is no prior partition before 1956 ascontended by defendants 9 to 13, then the plaintiff is definitelyentitled to the relief of partition. I am also of the consideredview that there is no sufficient material made available by thedefendants to prove the plea of adverse possession and the doctrineof ouster. In fact, the trial court has rightly observed that thedefendants 9 to 13 have failed to produce the sale deeds underwhich they purchased the properties from D1 and D8. Further, D.W.1(9th defendant) in his cross examination admitted that he did notknow as to how the property was enjoyed by the family members andalso he did not know how Karuppanna Gounder and Kuppanna Gounderbecame the owners of the lands. In view of the oral evidence ofD.W.1 and D.W.2 and their pleadings, the trial court has rightlycome to the conclusion that the doctrine of ouster could not be putagainst the plaintiff. That apart, the trial court has alsocorrectly decided the issue of promissory estoppel as the pleadingsof the defendants in this regard are not matched with properevidence. The trial court has also adverted to the contention ofthe defendants that the property was not properly identified andrightly decided the issue against them. Even otherwise, as rightlycontended by the learned counsel for the first respondent, thatcannot be put against the plaintiff in claiming his relief.22. Thus, the above issue is answered in favour of theplaintiff and against the appellants, as I am of the consideredview that the trail court has rightly decreed the suit in favour ofthe plaintiff. The decision relied on by the learned counsel forthe appellants reported in A.I.R. 1972 MAD 467 (cited supra), isclearly distinguishable on facts and the same is not useful to thecase of the appellants.23. In the result, I do not find any merits in the aboveappeal and accordingly, the appeal is dismissed and the judgmentand decree of the trial court is confirmed. No cost.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vaan ToThe Principal Subordinate Judge, Erode1 cc To Mr.A.K.Kumarasamy, Advocate, SR.201311 cc To Mr.T.Murugamanickam, Advocate, SR.19545A.S.No.332 of 2000MM(CO)SRA(10/6/2009)