IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.No.348 of 2010 and M.P.Nos.1 and 2 of 2010 Neelam Ragavaiah @ Gundaiah (deceased) 1.Nagamma 2.Subramani 3.Ramachandran 3.Venkatarathinam ... Appellants/Appellants/Plaintiffs Vs. 1.Neelam Krishnaiah 2.Ravanamma ... Respondents/Respondents 2 & 3 Defendants 2 & 3 Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 10.12.2009 made in A.S.No.16 of 2008 on the file of the learned Sub Judge, Tiruvallur, confirming the judgment and decree in O.S.No.130 of 2004 on the file of District Munsif Court, Tiruvallur. For Appellant : Mr.G.Karthikeyan J U D G M E N T The appellants are the legal heirs of Neelam Ragavaiah @ Gundaiah, the sole plaintiff who filed the suit before the lower court for the relief of partition of the suit property on the ground that the suit property alone was kept in common, while the other properties belonging to the family were divided among the members of the family. The sole defendant also is no more and the respondents herein are the legal representatives of the deceased sole defendant. The original plaintiff and the original defendant were brothers. 2. Admittedly, the properties they owned jointly including the suit property were their ancestral properties and each one of them was entitled to half share. It is also admitted that there was a division not only in status, but also in respect of the properties in metes and bounds in respect of all other properties excepting the suit property which measures around 0.34.5 hectares. The contention of the original plaintiff (deceased) was that the said property was left to be enjoyed in common as a thrashing floor. https://hcservices.ecourts.gov.in/hcservices/ 3. Per contra, the original defendant (deceased), besides disputing the above said contention of the plaintiff, contended that the suit property was one of the properties allotted to him in the oral partition that admittedly took place 10 years prior to the filing of the suit. When such is the case, the onus of proving that the parties decided to leave one of the properties alone, namely the suit property alone, as a common property to be enjoyed by them jointly, lies heavily on the person asserting the same. In this case, the predecessor of the appellants viz. plaintiff should have adduced evidence to prove the same. Except the ipse dixit of the plaintiff, who figured as the sole witness on his side and documents obtained subsequent to the filing of the suit, namely chitta, adangal, etc., the plaintiff had not adduced sufficient evidence to prove that the suit property was left to be enjoyed in common by the deceased plaintiff and the deceased defendant. 4. On the other hand, the defendant (deceased), besides examining himself as D.W.1, has also examined two more persons as D.W.2 and D.W.3 in support of his contention that the suit property was enjoyed by him exclusively after the admitted partition, as the same had been allotted to his share in the partition. He has also produced kist receipts from 1987 to show his possession and enjoyment of the suit property. Across the bar, the learned counsel for the appellants admits that after the admitted partition that took place 10 years prior to the filing of the suit, mutation of names was made in Revenue records in respect of the respective portions allotted to the original deceased plaintiff and the original defendant (deceased). Though it is claimed that the suit property alone stands in the joint names of the original plaintiff (deceased) and the original defendant (deceased), whereas the other properties stand in the name of the respective party to whom the same was allotted in the partition, the plaintiff had not chosen to produce those documents to prove that joint patta was issued in respect of the suit property alone, whereas separate patta has been issued in respect of the other properties. Even without production of patta, the plaintiff could have made an attempt to elicit from the defendant side witnesses to the effect that the joint patta has been issued in respect of the suit property alone whereas separate pattas have been issued in respect of the other properties. But the same has not been done. 5. Under such circumstances, the courts below have rightly come to the conclusion that the plaintiff had not discharged his onus of proving his contention that the suit property alone was left undivided. The said finding cannot be said to be perverse. No substantial question of law is proved to be involved in the second appeal. Therefore, this court comes to the conclusion that the second appeal deserves dismissal in limini. https://hcservices.ecourts.gov.in/hcservices/ 6. In the result, the second appeal is dismissed. Consequently, the connected miscellaneous petitions are also closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar asr To 1.The Sub Judge, Tiruvallur The District Munsif Court, Tiruvallur 2.The Section Officer, V.R.Section, High Court, Madras. 1 cc to M/s.G.Karthikeyan, Advocate, Sr.No.23706 Judgment in S.A.No.348/2010 RJ {CO} TP/31.5.2010. https://hcservices.ecourts.gov.in/hcservices/