Madras High Court
Chinna Guruvammal vs Subammal on 13 December, 2021
Author: V. Bhavani Subbaroyan
Bench: V. Bhavani Subbaroyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 13.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.566 of 2011
Chinna Guruvammal ...Appellant
vs.
1. Subammal
2. The Tahsildhar
Tahsildhar Office
Near All Women Police Station
Kovilpatti Town
Tuticorin District ... Respondents
Second Appeal filed under Section 100 CPC against the
judgment and decree dated 15.03.2011 passed in A.S. No.35 of 2010
on the file of the Sub Court, Kovilpatti reversing the judgment and
decree, dated 27.01.2010 passed in O.S.No.86 of 2008, on the file of
the District Munsif Court, Kovilpatti.
For Appellant : Mr.V.Meenakshi Sundaram
for Mr.D. Nallathambi
https://www.mhc.tn.gov.in/judis
2
For Respondents :
No.1 : Mr.S.Pon Senthil Kumaran
No.2 : Mr. G. Suriyananth
Additional Government Pleader
JUDGMENT
This second appeal has been filed to set aside the judgement and decree, dated 15.03.2011 in A.S. No.35 of 2010 on the file of the Sub Court, Kovilpatti reversing the judgment and decree dated 27.01.2010 passed in O.S. No.86 of 2008 on the file of the District Munsif Court, Kovilpatti by raising various grounds.
2. The learned counsel for the appellant would submit that it is an admitted case of the defendant that there is no right over the property or he is no way connected with the property in S. No.596/1C and the approach of the first appellate Court in not giving any relief to the appellant is not correct since the first respondent had categorically admitted that there is no right over the property is incorrect. Further, the plaintiff has not proved the oral partition by herself and the first defendant is not correct in stating that the first defendant had specifically admitted the oral partition in her written statement in para no. 7. The trial Court had misconstrued the patta https://www.mhc.tn.gov.in/judis 3 No. 216(ExA.2) dated 28.12.1995 produced by this plaintiff ought not to have relied on the evidence of DW.1 to the effect that there is no evidence regarding oral petition and the same is against her own pleadings in the written statement. The defendant accepted the oral partition between herself, plaintiff and other sisters. The burden of proof to prove that the allotment of southern side 48 cents of suit properties to her in the above partition. In the absence of any evidence, the court ought not have considered the same. The first defendant, who admitted that the patta No.216 under the UDR scheme stand in the name of the plaintiff alone and relating to the first and second items of the suit property and if the defendant has got any grievance she has to approach the RDO by filing appropirate revenue appeal and she cannot file a petition before the second respondent and further order passed by the second respondent including the name of the first respondent is without jurisdiction. The findings of the lower appellate Court is incorrect and further submitted that independent of PW2 regarding the possession and enjoyment of first and second item of the suit property ought to have been considered by the Court below and when the plaintiff has proved the tite and possession by appropriate documents, the Court ought not to have considered the https://www.mhc.tn.gov.in/judis 4 case of the defendants and reversed the judgement. The plaintiff further submitted that the suit scheduled property in S. No.592/1A is to an extent of 0.09.0 Hectare, S. No.592/1B to an extent of 0.30.0 Hectare and S. No.596/1C is to an extent of 0.95.0 Hectare.
3. The plaintiff filed a suit for declaration of title, consequential permanent injunction directing the second respondent to restore the Patta No.216 in the name of the plaintiff. The trial Court decreed the suit in its entirety on 27.01.2010. Aggrieved by the same, an appeal was filed by the defendant and the appeallte court has found that plaintiff has alienated the suit 3rditem to one Essakki Pandian and he is not entitled to get any relief in respect of the third suit item but when the plaintiff has sold the his part to one third party he has to safeguard the interest of the said purchaser as he is entitled for declaration. The trial court was of the view that as per the registered partition deed dated 13.11.1970 (Ex.A.1) suit property was shown as 5th schedule and the same was allotted to the branch of the plaintiff and the first defendant. Further, the trial Court found that the 1 st defendant had attempted to make mutuations in the revenue records before the second defendant who is having no jurisidiction to entertain https://www.mhc.tn.gov.in/judis 5 the application under the UDR scheme. Oral partition was accepted by the parties in the pleadings and the subsequent mutation is in the name of the plaintiff. The plaintiff alienated the 3rd schedule(596/1C) in favour of one Esakki Pandian and in the written statement (para 11) the first defendant admitted that she is in no way related with S.No. 596/1C was not all considered by the appellate Court and had dismissed the suit for declaration, permanent injunction and mandatoryinjunction. Aggrieved by the same, the plaintiff has filed second appeal before this Court.
4. When the matter is taken up it was pointed out by the parties concerned that after registration of the partition properties were alltoed to each branch by partition deed dated 13.11.1970. There was also oral partition in the branch of the plaintiff and the suit schedule property had been allotted to the share of the plaintiff and she obtained separate patts in patta No.216.The first defendant has objected for the same that there was an oral partition but in S.No. 592/1 measuring 96 cents was orally partitioned between the plaintiff and the first defendant at 48 cents each and northern side was allotted to the plaintiff and the southern side of 48 cents was allotted https://www.mhc.tn.gov.in/judis 6 to the defendants in S.No.592/1 . As the defendant said to have a portion of southern side 48 cents in favour of his son Navaneetha Krishnan by a settlement deed dated 13.09.2007 and the survey No. 592/1A and 592/1B give n under the UDR scheme and the S.No. 592/1A measuring 0.09.0 hectate(22.2 cents) is denoting the western side pathway and remaining eastern side portion 0.30.0 hectare(74.1 cents) is S.No.592/1B. Further the suit third item S.No.596/1C measuring 0.95.5 hectares , which belongs to the plaintff and she has got no connection or relation with the said properties and the appellate Court has dismissed the suit in respect of the third item. This Court is of the view that the appellate court ought to have considered the said submission and orders to have been rendered and inview of the plaintiff selling the property to one third party the Court has to settle the issue between the vendor and the purchaser and also justice to the purchaser ought to have considered and pass orders. The appellant is duty bound to safeguard the interest of the purchaser and the same has also been reiterated in the written statement and the Court ought to have considered the same while decreeing the suit. As no such act has been done by the appellate Court in respect of suit third item in S.No.596/1C measuring 0.95.0 hectare had allowed in favour of the https://www.mhc.tn.gov.in/judis 7 plaintiff. Regarding the first and second item,wherein the plaintiff has sought for declaration in S.No.592/1A to an extent of 0.09.0 hectare which has already been sub divided into 1A and 1 B. The oral partition was admitted by both the parties which has taken place in the year 1980 The plaintiff and the defendant have pleaded the same in the written statement When there is an oral partition between the parties the courts ought to have moulded the relief under Order 7 Rule 7 of the Code of Civil Procedure by granting lesser relief of partition of northern side 48 cents to the plaintiff and southern side 48 cents to the first defendant that would have solved the entire issues.
5. This Court is inclined to pass a preliminary decree of partition in S.No.592/1 between the plaintiff and the first defendant by allotting 48 cents in the northern side and southern side 48 cents to the first defendant /first respondent. Regarding the sub divisions made S. No. 592/1 measuring 96 cents was sub -divided as S. No.592/1A denoted a western side pathway measuring 0.09.0 hectare approximately equal to 22.2 cents and remaining portion as survey No.592/1B. The Court is inclined to pass a preliminary decree for partition on the northern side 48 cents cents in survey No.592/1 in favour of this https://www.mhc.tn.gov.in/judis 8 appellant and the southern side 48 cents in S.No.592/1 in favour of the first respondent/first respondent and the parties to file appropirate division by a competent Advocate Commissioner at the time of passing final decree proceedings.
6. As far this issue is concerned, this Court is inclined to pass preliminary decree of partition alloting 48 cents in northern portion in S.No.592/1 in favour of the appellant /plaintiff and southern side 48 cents in S.No.592/1 in favour of the first defendant /first defendant . Both the parties are at liberty to proceed for final decree application to effect actual partition and sub division and thereafter they are at liberty to mutate their names in the revenue records in their favour. Regarding the pathway that will be decided in the final decree application
7. The second appeal is disposed of. No costs.
13.12.2021 Index: Yes/No. Internet: Yes/No. aav https://www.mhc.tn.gov.in/judis 9 Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilised for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. To
1. The Sub Court, Kovilpatti
2. The District Munsif Court, Kovilpatti https://www.mhc.tn.gov.in/judis 10 V. BHAVANI SUBBAROYAN, J.
aav S.A.(MD) No.656 of 2009 and M.P(MD) No.1 of 2009 13.12.2021 https://www.mhc.tn.gov.in/judis