Madras High Court
G.Maharajan Asari vs G.Natarajan Asari on 4 February, 2011
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/02/2011 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH Second Appeal (MD) No.280 of 2004 and C.M.P.(MD)No.1324 of 2004 G.Maharajan Asari ... Appellant vs G.Natarajan Asari .. Respondent Appeal filed under section 100 of Civil Procedure Code, against the judgment and decree dated 21.04.2004 in A.S.No.129 of 2003 on the file of I Additional Sub Judge, Nagercoil, reversing the judgment and decree dated 16.09.2003 in O.S.No.629 of 1996 on the file of the 2nd Additional District Munsif Court, Nagercoil. !For Appellant ... Mr.G.R.Swaminathan ^For Respondent ... Mr.N.Sivakumar :JUDGMENT
This appeal is filed as against the preliminary judgment and decree, dated 21.04.2004 passed by the 1st Additional Sub Judge, Nagercoil, in A.S.No.129 of 2003 reversing the judgment and decree, dated 16.09.2003 in O.S.No.629 of 1996 on the file of the 2nd Additional District Munsif Court, Nagercoil.
2.The appellant was the defendant and the respondent was the plaintiff before the trial Court. The respondent/plaintiff filed a suit for partition in respect of items 1 to 5 of the suit scheduled properties.
3.Brief facts which are necessary to decide the appeal are as follows:
a)The appellant/defendant is the brother of the respondent/plaintiff.
Their father namely Ganapathy Asari died 47 years back. The elder brother of Ganapathy Asari is one Maharajan Asari. The Maharajan Asari (i.e,) who is the brother of their father died 42 years back leaving behind him only his widow Thapasiammal. The said Maharajan Asari died without any issue. Hence, after his demise the widow of Maharajan Asari namely, Thapasiammal became the absolute owner of the properties of her husband which are mentioned in the suit scheduled properties. The respondent/plaintiff was working in the standard Motor Works at Thamparam, Madras and as such the appellant/defendant was managing his aunt Thapasiammal properties.
b)In the said situation, in the year 1971, the respondent/plaintiff filed a suit for partition of his 1/2 share in the scheduled items 1 to 5 and also in respect of another item of properties in O.S.No.397 of 1971 as against his aunt Thapasiammal and also as against his brother ie., appellant/defendant. The said suit was dismissed in the year 1973 by District Munsif Court, Nagerocil. Aggrieved over the same, the respondent/plaintiff filed an appeal in A.S.No.240/1973 and the same was also dismissed in the year 1975.
c)Though the suit filed by the respondent/plaintiff as against the appellant/defendant was dismissed, subsequent to the dismissal of the appeal irrespective of the result of the said case, the aunt of the respondent/plaintiff executed a gift deed in favour of the respondent/plaintiff conveying 1/2 share in the items 1 to 4 of the suit scheduled properties and the entire property in item no.5 It is the further case of the respondent/plaintiff that ever since from the date of gift deed, he became the absolute owner of the property covered under the gift deed. Since he was residing at Madras on account of his employment, he had permitted his brother viz., the appellant/defendant to continue to manage his share of the properties conveyed under the gift deed by his aunt and to pay the income deriving from it.
d)Subsequently, the said Thapasiammal died after 8 years from the date of the execution of the gift deed. Since the Thapasiammal had no issues, the appellant/defendant and the respondent/plaintiff alone became the heirs of Thapasiammal. Hence, the respondent/plaintiff is entitled for 1/2 share by way of inheritance in the suit scheduled properties which were left behind his aunt. But by virtue of gift deed executed by his aunt Thapasiammal during her life time, in favour of him, he is also entitled for equal share in the remaining half share of items 1 to 4 along with his brother and also for the entire share in the item No.5 property. In that way, the respondent/plaintiff is entitled for 3/4th share in the plaint item nos.1 to 4 and the appellant/defendant is entitled for 1/4th share and so far as the item no.5 is concerned, the respondent/plaintiff is entitled for entire item of the property as per the gift deed. Since the appellant/defendant was evading partitioning of the shares of the respondent/plaintiff after issuing a legal notice dated 04.08.1993, the respondent has filed a suit for the following reliefs:
"a)For partitioning plaintiff's 3/4th (three fourth) share in plaint schedule items 1 to 4 by metes and bounds with separate possession.
b)For recovery of possession of plaint schedule item 5 from the defendant
c)Awarding future annual mesne profits at the rate of Rs.1680/- for the plaintiff's 3/4th share from plaint schedule items 1 to 4 and for the entire share in item 5 with future interest at 12 % per annum.
d)awarding costs to the plaintiff".
e)The case of the respondent/plaintiff was resisted by the appellant/defendant stating that the Thapasiammal never executed a gift deed in favour of the respondent/plaintiff. If there is any document of gift deed in favour of respondent/plaintiff, it should be a fraudulent document created by the respondent/plaintiff and the said gift deed never came into effect. Moreover, the appellant/defendant was in possession and enjoyment of the property for more than 15 years and the appellant/defendant never paid any amount derived from the suit scheduled properties to the respondent/plaintiff. The respondent/plaintiff and the appellant/defendant were never in joint possession of the suit scheduled properties and hence even if the respondent/plaintiff has any right over the property, the same has been lost by way of adverse possession. The appellant/defendant has prescribed title by way of adverse possession by his long and uninterrupted and hostile possession and enjoyment over the suit schedule properties for the last 15 years. Thus, the appellant/defendant prayed for the dismissal of the suit.
4.On the said pleadings, the trial court framed four issues. On the side of the respondent/plaintiff, he himself examined as P.W.1 and Exs.A-1 to A-7 were marked and on the side of the appellant/defendant, he himself examined as D.W.1 and Exs.B-1 to B-14 were marked. The trial court, on a consideration of the evidence, both oral and documentary, dismissed the suit on a finding that the gift deed executed by the said Thapasiammal ie., the aunt of the respondent/plaintiff was not proved by the respondent/plaintiff in the manner known to law.
5.Aggrieved over the same, the respondent/plaintiff preferred an appeal before the Sub Court, Nagercoil. Though the lower appellate Court has confirmed the finding of the trial Court in rejecting the gift deed marked as Ex.A-1 on the side of the respondent/plaintiff ultimately, it has passed a preliminary decree of partition in favour of the respondent/plaintiff on a finding that even if the gift deed executed by his aunt Thapasiammal is not proved by way of inheritance the respondent is entitled for half share in the suit scheduled properties. Aggrieved over the same, the present appeal is filed by the appellant/defendant.
6.At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration:
"Whether the suit filed by the respondent herein in O.S.No.629/1996 should fail for partial partition as all the joint properties have admittedly not been brought on record?".
7.Learned counsel appearing for the appellant/defendant submitted that the respondent/plaintiff who examined himself as P.W.1 had admitted in his cross examination that he had omitted to include one of the properties left behind by his father in the suit scheduled properties for partition. The said admission of the respondent/plaintiff would show that the suit filed by the respondent/plaintiff is only for a partial partition.
8.It is a well settled legal principle that partial partition is not maintainable and hence, the suit filed by the respondent is liable to be dismissed on the ground of partial partition. In support of his contentions, learned counsel appearing for the appellant/defendant has also relied upon the judgment reported in 1994 4 SCC 294 (Kenchegowda Vs.Siddegowda alias Motegowda).
9.That apart, learned counsel appearing for the appellant/defendant submitted that it is an admitted fact that the respondent/plaintiff had never been in the joint possession of the suit scheduled properties which the appellant/defendant is managing and therefore, even if there is any right for the respondent/plaintiff, the same has been lost by way of adverse possession. Therefore, the suit filed by the respondent/plaintiff has to be dismissed on this legal principles also.
10.Per contra, learned counsel appearing for the respondent/plaintiff submitted that the appellant/defendant had never raised a plea regarding partial partition before the trial Court. Therefore, the same cannot be considered at the appellate stage. It is the further submission of the learned counsel for the respondent/plaintiff that the adverse possession cannot be claimed as against the co-owner of the property. Hence the judgment and decree of the lower Appellate Court has got to be sustained.
11.By way of reply, learned counsel for the appellant/defendant has also submitted that the issue with regard to the partial partition is only a question of law and as such, the same could be urged even at the appellate stage. Therefore, the contentions of the respondent/plaintiff that there was no pleading in the written statement with regard to the maintainability of suit on the ground of partial partition, is not worthy to be considered. In support of his contention, the learned counsel for the appellant/defendant has also relied upon another judgment reported in 1976 2 SCC 152 (Gurucharan Singh Vs.Kamla Singh and others).
12.This Court has paid it anxious consideration to the submissions made by the learned counsel for both sides and perused the materials available on record
13.In view of the submissions made by the learned counsel on either side, the questions that has to be decided in this Appeal are as follows:
"i)Whether the suit is bad for partial partition and
ii)Whether the appellant/defendant has prescribed title by way of adverse possession by his long and unintrupted and hostile possession and enjoyment over the suit schedule properties?"
14.With regard to the first question, it is the contention of the learned counsel appearing for the appellant/defendant that the respondent/plaintiff has admitted in his evidence that he has not included one of the properties of his father measuring to an extent of 3.5 cents in the suit scheduled properties for partition. Hence, it is clear from the evidence of P.W.1 that the suit was filed only for partial partition and therefore, the lower appellate Court ought to have dismissed the appeal filed by the respondent/plaintiff since the suit for partial partition is not legally sustainable. But on a perusal of the materials available on record, this Court finds that the defence of partial partition had never been an issue before the trial Court and in fact, the appellant/defendant has neither pleaded the defence of partial partition nor adduced evidence that the suit is bad for partial partition. On the other hand, it is the contention of the appellant/defendant before the trial Court that the gift deed executed by the said Thapasiammal in favour of the respondent/plaintiff is a fraudulent document. The trial Court has rendered a finding that the respondent/plaintiff has not proved the gift deed in the manner known to law and dismissed the suit. But on appeal though the said finding was confirmed, the lower Appellate Court has rightly come to the conclusion that the respondent/plaintiff is entitled for half share in the suit scheduled properties by way of inheritance. Therefore, it is evident that the defence of partial partition had never been raised as an issue before the Courts below.
15.Though the learned counsel appearing for the appellant/defendant has relied upon two decisions in support of his contentions that the defence of partial partition is only question of law and as such the same could be urged at the appellate stage, I am of the view, unless there is an evidence on the side of the appellant/defendant, the issue with regard to the partial partition cannot be considered at the appellate stage since the issue of partial partition is totally based on the pleading and the evidence available in the case. Therefore, the judgment relied upon by the learned counsel for the appellant/defendant cannot be made applicable to the facts of this case. Hence, I am not inclined to accept the submission made by the learned counsel for the appellant/defendant that the appeal has to be allowed since the suit is bad in law for partial partition.
16.So far as the second question is concerned, I find that it is the case of the respondent/plaintiff that on account of employment he was residing at Chennai and hence, his brother, namely, the appellant/defendant herein managed was managing the suit scheduled properties.
17.In other words, it is the specific case of the respondent/plaintiff that since he was residing at chennai on account of his employment, he permitted his brother to manage the property. The evidence of P.W.1 would show that he had permitted the appellant to manage the suit schedule properties since he was residing away from the suit properties. Under such circumstances, the claim of the appellant/defendant that he was in possession of the suit schedule property for more than 15 years and as such he had prescribed title by way of adverse possession cannot be accepted. Hence, I am of the opinion, the lower appellate Court has deeply gone into the factual aspects and set aside the judgment of the trial Court. I do not find any infirmity in the said judgment of the lower Appellate Court. Hence, the substantial question of law is answered against the appellant/defendant.
18.For the reasons stated above, the appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition stands dismissed.
sms To
1.The I Additional Sub Judge, Nagercoil
2.The II Additional District Munsif Court, Nagercoil