1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.04.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.121 of 2011 and MP(MD)No.1 of 2011 Kallan .. Appellant/Plaintiff Vs. 1.Poovalingam 2.Rahini 3.Ramayee 4.Thangavelu .. Respondents/Defendants Second Appeal filed under section 100 of CPC against the Judgment and decree dated 07.12.2010 passed in Appeal Suit No.7 of 2010 by the Sub Court, Sivagangai confirming the Judgment and decree dated 19.10.2009 passed in Original Suit No.163 of 2007 by the District Munsif Court, Sivagangai. For Appellant : Mr.VR.Shanmuganathan For RR – 2 to 4 : Mr.A.Sivaji For R – 1 : No appearance JUDGMENT Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.163 of 2007 and in Appeal Suit No.7 of 2010 by the District Munsif Court and Sub Court, Sivagangai respectively. 2. The appellant as plaintiff has instituted Original Suit No.163 of 2007 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants. 3. The nubble of the plaint can be stated like thus: The suit properties are situate in Kaakulam and Paluvur Villages, Sivagangai District. The said villages have been taken over by the Government under Act 26 of 1963. The suit properties are originally belonged to the predecessors of the plaintiff. The father of the plaintiff by name Thoppulan has passed away in the year 1956. After his demise, the mother of the plaintiff by name Kali has looked after the plaintiff, father of the first and second defendants and also third defendant. Since the father of the plaintiff by name Thoppulan has passed away prior to settlement enquiry, patta has been issued in the name of Kali, mother of the plaintiff and she is nothing by a name lender. The father of the defendants 1 and 2 has passed away in the year 1974. After the demise of Thoppulan, in the year 1981 an oral partition has been effected as per village custom, wherein the suit properties and some other properties have been allotted to the share of the plaintiff. The https://hcservices.ecourts.gov.in/hcservices/ 2 first defendant has been allotted to some other properties. For patta No.82 the plaintiff has been paying tax. In the third item of suit 'B' schedule property the plaintiff has constructed a house. In the suit properties the defendants are not having any manner of right, title and interest and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the fourth defendant and adopted by remaining defendants, it is averred that the relationship mentioned in the plaint is correct. The mother of the fourth defendant has not been given sufficient seervarisai. The father of the first defendant has passed away during minority of the first defendant. It is false to say that the suit properties are originally belonged to the predecessor of the plaintiff. It is also equally false to contend that prior to settlement enquiry Thoppulan has passed away and therefore, patta has been granted in the name of his wife and she is nothing but a name lender. It is false to contend that an oral partition has been effected, wherein the suit properties and some other properties have been given to the share of the plaintiff. The suit properties are the separate properties of Kali who is none other than the maternal grandmother of the fourth defendant. As per family arrangement the suit properties have been given to the fourth defendant. The properties belonged to Thoppulan have been given to his sons. The plaintiff is not having title to the suit properties and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.7 of 2010 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/plaintiff the following substantial questions of law have been raised for consideration: (a) Whether the Courts below have committed error in not granting the relief to the plaintiff either for partition or for declaration to the extent of 1/3rd in the suit properties, even after holding that he is entitled to 1/3rd share in the suit properties except C schedule, especially where all the other sharers are parties to proceedings? https://hcservices.ecourts.gov.in/hcservices/ 3 (b) Whether the Courts are not empowered under Order 7 Rule 7 of CPC to grant the relief of partition and separate possession in a suit for declaration and injunction? (c) Whether the Courts below have committed an error in dismissing the suit of the plaintiff in entirety where they themselves hold that the plaintiff is entitled to a lesser share and not the larger or full share as claimed by him? 9. The consistent case of the plaintiff is that all the suit properties are originally belonged to the predecessor of the plaintiff and his father name is Thoppulan and the suit villages have been taken over by the Government under Act 26 of 1963 and even prior to settlement enquiry, the father of the plaintiff viz., Thoppulan has passed away leaving behind his wife viz., Kali and two sons namely Kalilmuthu and Kallan (plaintiff) and since he passed away prior to settlement enquiry, patta has been granted in the name of Kali and she is nothing but a name lender and thereafter in the year 1981 an oral partition has been effected as per village custom amongst the plaintiff and first defendant since his father has passed away in the year 1974 and in the said oral partition all the suit properties and some other properties have been allotted to the share of the plaintiff and since then the plaintiff has been in possession and enjoyment of the suit properties and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint. 10. Per contra it has been contended on the side of the defendants that all the suit properties are the separate properties of Kali and due to that during settlement period patta has been granted in her name and after the demise of Kali, an oral family arrangement has been effected, wherein the properties standing in the name of Kali (including suit properties) have been allotted to the share of fourth defendant since his mother viz, the third defendant has not been given proper sridhanam and therefore the fourth defendant has become absolute owner of the suit properties and in which neither the plaintiff nor the remaining defendants has had any right and therefore, the present suit deserves to be dismissed. 11. Both the courts below have concurrently rejected the contention urged on the side of the plaintiff. Under the said circumstances apart from the substantial questions of law raised on the side of the appellant/plaintiff, the following factual aspects have become emerged for consideration: (a) Whether the oral partition alleged on the side of the appellant is true? (b) Whether the oral family arrangement put forth on the side of the fourth defendant is correct? (c) Whether the suit properties are originally belonged to ancestor of the plaintiff or separate properties of Kali (mother of the plaintiff)? https://hcservices.ecourts.gov.in/hcservices/ 4 12. As expounded earlier, the consistent case of the plaintiff is that the suit properties are originally belonged to ancestor of the plaintiff and subsequently the same have been enjoyed by Thoppulan, father of the plaintiff and since prior to settlement enquiry he passed away, patta has been granted in the name of Kali, mother of the plaintiff. 13. On the side of the plaintiff Exs.A1 to A6 have been filed. Except Ex.A2, on the side of the plaintiff, no other clinching document has been filed so as to prove that the suit properties are originally belonged to ancestor of the plaintiff and thereafter the father of the plaintiff viz., Thoppulan has had enjoyed the same. 14. It is an admitted fact that the suit villages have been taken over by the Government under Act 26 of 1963 and thereafter settlement enquiry has been conducted and after settlement enquiry a patta has been granted in the name of the mother of the plaintiff viz. Kali. Ex.A2 is a copy of 'A' register. In Ex.A2 name of mother of the plaintiff Kali is found place along with others. Since Ex.A2 stands in the name of the said Kali and since no document has been filed so as to prove that the suit properties are originally belonged to ancestor of the plaintiff, it is needless to say that the suit properties are the separate properties of Kali who is none other than the mother of the plaintiff and third defendant and grandmother of the defendants 1, 2 and 4. 15. The specific case of the plaintiff is that in the year 1981 an oral partition has been effected as per village custom amongst the plaintiff and first defendant since his father has passed away in the year 1974, wherein the suit properties and some other properties have been allotted to the share of the plaintiff. 16. The defence taken on the side of the fourth defendant is that since the suit properties are the separate properties of Kali and since the mother of the fourth defendant viz., third defendant has not been given proper sridhana at the time of her marriage, all the properties standing in the name of Kali including the suit properties have been given to the fourth defendant in an oral family arrangement and all the properties standing in the name of Thoppulan have been given to his sons. 17. Even though in the present case two separate stands have been taken on the side of the plaintiff as well as on the side of fourth defendant no worthwhile document has been filed so as to prove the alleged oral partition put forth on the side of the plaintiff as well as the oral family arrangement put forth on the side of the fourth defendant. The documents filed on either side are not at all sufficient for coming to a conclusion that an oral partition has been effected in the year 1981 or an oral family arrangement has been effected as alleged on the side of the fourth defendant. Since trustworthy documents have not at all been filed on either side so as to establish the rival contention put forth on either side, the Court cannot believe the two kinds of versions put forth on the side of the plaintiff as well as on the side of fourth defendant. 18. The present suit has been instituted for the reliefs of declaration and perpetual injunction stating that the plaintiff is having https://hcservices.ecourts.gov.in/hcservices/ 5 exclusive right, title and interest and also enjoyment in the suit properties. But the stand taken on his side has not at all been established and further, the documents filed on his side are not at all sufficient for coming to a conclusion that the suit properties have been allotted to the share of the plaintiff as averred in the plaint. Under the said circumstances the reliefs sought for in the plaint cannot be granted. 19. The Courts below after considering the available evidence on record have rightly rejected the claims put forth on the side of the plaintiff. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further, the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 20. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous petition is also dismissed. The concurrent Judgments and decrees passed by the Courts below are confirmed. However, both parties are at liberty to work out their remedy by way of filing a separate suit for partition. sd/- Assistant Registrar (Crl. Side) /True Copy/ Sub Assistant Registrar (C.S) To 1.The Subordinate Judge, Sivagangai 2.The District Munsif, Sivagangai. + 1 cc to Mr.A.Sivaji, Advocate, SR No.14732 + 1 cc to Mr.R.Velmurugan, Advocate, SR No.14731 SA(MD)No.121 of 2011 25.04.2011 mj RJ/31.5.11 5p/5c https://hcservices.ecourts.gov.in/hcservices/