Madras High Court
Chinnasamy @ Chenniappan (Deceased) vs Karuppayal on 15 April, 2010
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2010
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
SA.No.296/2001
1.Chinnasamy @ Chenniappan (Deceased)
2.Palaniammal
3.Kannammal
4.Maheswari
5.Jothi Appellants
Vs
1.Karuppayal
2.Nachimuthu Gounder
3.Nallasamy
4.Palanisamy
5.Subramani
6.Palaniammal @ Ammani
7.Nachimuthu Respondents
Prayer:- This Second Appeal is filed against the Judgement and Decree dated 8.8.2000 passed in AS.No.26/2000 by the learned Principal District Court, Erode, reversing the Judgement and Decree dated 26.10.1999 passed in OS.No.89/1998 by the learned District Munsif cum Judicial Magistrate, Perundurai.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.S.Kaithamalaikumaran-RR1to5
R6-No Appearance
R7-Given Up
JUDGEMENT
The Plaintiff/1st Appellant herein, who succeeded before the Trial Court, but lost his case before the lower Appellate Court, has filed this Second Appeal against the Judgement and Decree dated 8.8.2000 passed in AS.No.26/2000 by the learned Principal District Court, Erode, reversing, the Judgement and Decree dated 26.10.1999 passed in OS.No.89/1998 by the learned District Munsif cum Judicial Magistrate, Perundurai. Since during the pendency of this second appeal, the Plaintiff/1st Appellant died, his legal representatives are brought on record as the Appellants 2 to 5 herein.
2. The undisputed facts are that the suit property and the other properties originally belonged to one Kuppichi Gounder and he had four sons by name Nachimuthu Gounder, Karuppana Gounder, Chennimalai Gounder, the father of the Defendants 1 to 6 and the grand father of the Defendants 3 to 5 and Chinnappa Gounder, the father of the Plaintiff and the 7th Defendant. The 2nd Defendant is the husband of the 1st Defendant and the 6th Defendant is the sister of the 1st Defendant.
3. According to the Plaintiff, the sons of Kuppichi Gounder @ Kuppanna Gounder partitioned their ancestral properties orally and the suit property was allotted to the father of the Plaintiff by name Chinnappa Gounder. Till his death, he was in possession and paying kists and mutation of records had also taken place. He died in the year 1996 and subsequent to his death, there was a family arrangement between the Plaintiff and his brother 7th Defendant herein and the suit property was allotted to the Plaintiff. From the date of the said family arrangement, the Plaintiff is in possession and enjoyment and paying kists to the suit property. Enmity developed between the Plaintiff and the Defendants with regard to straying of cattle, due to which, the Defendants attempted to trespass into the suit property and tried to interfere with his possession and enjoyment. Hence, he has filed the present suit.
4. The Defendants 1 to 6 in their common Written Statement denied about the oral partition between the sons of Kuppichi Gounder and the allotment of the suit property to Chinnappa Gounder, the father of the Plaintiff. They also denied the family arrangement, by which the suit property is said to have been in possession and enjoyment of the Plaintiff. They have stated that there is only a joint patta in the name of the sons of Kuppichi Gounder and the suit property and the other properties were not partitioned and as a convenient enjoyment, each of the sharers is cultivating some part of the ancestral lands without any interference from each other. According to them, the suit property is not in exclusive possession of the Plaintiff, excluding the other sharers.
5. It is further averred in the Written Statement that the 1st Defendant had filed a suit in OS.No.910/1984 against the Plaintiff's father Chinnappa Gounder and the other co-sharers for partition and separate possession of her 1/6th share in the suit property and a preliminary decree was passed and Ex.B1 is the certified copy of the same. The wife and the other legal heirs of the eldest son of Kuppichi Gounder had filed another suit in OS.No.513/1995 before the I Additional Sub Judge, Erode against all the co-sharers seeking partition of all the joint family properties including the suit property, in which the Plaintiff, his elder brother 7th Defendant herein and the Defendants 1 to 6 were parties. According to the Defendants, the Plaintiff having received summons remained exparte and therefore, he is estopped from contending that the Defendants 1 to 6 are not entitled to their legal shares in the suit property. The Defendants have also referred to about another suit in OS.NO.290/1995 on the file of the Sub Court, Erode filed by the Plaintiff's brother, 7th Defendant against the Defendants and the other sharers for partition of the suit property into twelve equal shares and allotment of one share to him. According to the Defendants, the above said suit would clinchingly show that the suit property was not exclusively in possession of the Plaintiff and remained only as a joint property and as there was no division, each sharer had claimed partition of their shares by filing suits. Therefore, they contended that the Plaintiff is not entitled for permanent injunction against the co-sharers.
6. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiff had marked Exs.A1 to A16 and examined himself as PW.1 and one Nachimuthu Gounder as PW.2. The Defendants had marked Exs.B1 to B17 and examined the 2nd Defendant as DW.1, one Admalaisamy as DW.2 and Kannan, the Village Administrative Officer as DW.3.
7. The Trial Court, after considering both the oral and documentary evidence, decreed the suit and the appeal filed by the Defendants 1 to 6 as against the Judgement and Decree of the Trial Court was allowed by the lower Appellate Court. Hence, this second appeal has been filed by the Plaintiff.
8. This court heard the submissions of the learned counsel on either side and also perused the material records placed.
9. This court, while admitting this second appeal, had formulated the following substantial questions of law:-
(a)Whether the finding of the lower Appellate Court based on Ex.B1 is relevant for the purpose of the case, especially when the possession is established for securing the relief of injunction against the Defendants?
(b) Whether the finding rendered by the lower Appellate Court is contrary to the evidence, because in the instant case DW.1's evidence will support the case of the Plaintiff?
10. Indisputably, Kuppichi Gounder had owned about 40 acres of land in three different Villages, namely, Velampalayam, Chinniyampalayam and Velliraveli and the suit property is inclusive of those ancestral lands. The suit property was the subject matter in all the three suits filed by the Defendants/co-sharers claiming partition, though the claim of share by each party is not consistent with the actual share they are entitled to. The Plaintiff has not disclosed about any of the suits in his plaint and pleads total ignorance of the above said suits in his evidence. Though he has pleaded about the oral partition between the sons of Kuppichi Gounder, but he has admitted in his evidence that he does not know as to when such oral partition took place and what are the lands allotted to each sharer. However, it is his specific case that the property was allotted to his father and subsequently, in the family arrangement between himself and his brother, the 7th Defendant herein, the Plaintiff had taken possession of the suit property. Though he alleged that patta got transferred in his father's name, he has not filed the said patta before the court.
11. The Plaintiff, while he examined himself as PW.1 in his cross examination, would state that after the death of his father, they got the patta transferred in his name and his brother. But, he has not chosen to file the said patta as well. The Plaintiff placed reliance on the documents Ex.A1 to Ex.A5 Adangal extracts standing in the name of Chinnappan for fasli 1402 to 1406. That apart, Ex.A6 to Ex.A11 are the kist receipts and there is no indication that it relates to the suit property, as neither patta number nor the suit survey number is mentioned though several numbers are written on those receipts. DW.3 the Village Administrative Officer of the Village in which the suit property lies has stated that only a joint patta exists for the suit property and all the sharers are cultivating the suit lands. Except Ex.A1 to Ex.A4 adangal extract, there is no other document to prove that the suit property is in exclusive possession of the Plaintiff.
12. On the other hand, the Defendants have filed Ex.B4 chitta, Ex.B5 RSR Extract, Ex.B6 adangal and kist receipts Ex.B7 to Ex.B17, which relates to patta No.325 referable to suit property. All those documents stand in the joint names of the co-sharers, though some of them are not alive.
13. In the case of a joint property, all the sharers are entitled to the properties and are entitled to enjoy the same. Even if one of them is shown to be in possession, his physical possession will be that of an owner of his own interest and also that of other co-owner. It is settled principle that possession of one of the co-sharers is the possession of all the other sharers unless the person who claims to be in exclusive possession asserts his title himself to the exclusion of the other co-sharers which may amount to ouster. Suffice to say, it is for the person, a sharer who claims or asserts ouster to prove the same.
14. The learned counsel for the Appellants strongly relied upon the admission made by the Defendants in their Written Statement that the Plaintiff is cultivating the suit land. In the Written Statement, it is only said that the co-sharers are cultivating the suit land in separate plots for the sake of convenient cultivation. It is specifically averred that the 1st Defendant is in possession and enjoyment of 1.50 acres on the eastern portion where two tamarind trees are situated and the Plaintiff and the other co-sharers are in possession and enjoyment of the portion of land on the west where there are other trees. DW.1's evidence only indicated that each sharer was enjoying a specified portion only for the sake of convenient enjoyment and it appears that the dispute had arisen only when the Plaintiff claimed right in the tamarind trees situated in the portion cultivated by the Defendants.
15. In the present case, except Exs.A1 to A4 and the oral evidence of PW.1, there is no other evidence to show the exclusive possession of the Plaintiff excluding the other co-sharers, more particularly his brother. It is pertinent to point that his brother has also filed a suit in OS.No.290/1995 against the other co-sharers for partition and he has not stated about the oral partition pleaded by the Plaintiff. It is also significant to point out that in none of the above suits filed by the other co-sharers, the Plaintiff has appeared and contested about the oral partition between the sons of Kuppichi Gounder and the allotment of suit property the to his father, Chinnappa Gounder.
16. When each co-sharer is entitled to occupy the whole in common with the others, none of them is entitled to the exclusive possession of any particular part of the property held in common. The equal right to the enjoyment of the entirety of joint property is subject to the limitation of the recognition of a similar right of use and enjoyment by the other co-sharers. It is true that a co-owner is bound to exercise his right in the joint property, as not to interfere with the rights of other co-owners, but however, it does not mean that a co-owner is entitled to the exclusive possession of the whole or of any part except of course by agreement or on partition where the co-ownership terminates.
17. It is only on proof of clear ouster or of clear denial of the title of the co-sharers, the exclusive possession of joint property by one co-sharer could succeed. In the present case, I am not persuaded with the evidence led by the Plaintiff that there was a division of properties so as to exclude the other owners.
18. The observations made in the cases of V.Devarajan Vs. R.Purushothaman and three others [1998-1-CTC-22] and Sri Ram (deceased by LRs) and another Vs. Chauthi (deceased by LRs) and others [AIR-1989-All-53] cannot be applied to the facts of this case, as the facts in those cases are clearly distinguishable. The learned counsel for the Appellants placed reliance on a decision of the Honourable Supreme Court rendered in the case of Madhukar and others Vs. Sangram and others [2001-4-SCC-756] that when substantial documentary evidence placed on record has not been considered by the first appellate court that was noticed and appreciated by the Trial Court, this court can interfere with the said finding in the second appeal. I am unable to countenance the argument advanced by the learned counsel for the Appellant, as the first appellate court has drawn conclusions from the evidence placed on record by applying its mind independently and considered the reasoning of the Trial Court and thereafter had given its reasons for not agreeing with the findings of the Trial Court.
19. The first appellate court has noted that the Plaintiff has not been able to prove the oral partition and allotment of the suit property to the father of the Plaintiff and the exclusive possession pleaded by the Plaintiff. On the other hand, the total in-action on the part of the 1st Defendant in getting the final decree pursuant to the preliminary decree in OS.No.910/1984 and the inconsistent stand taken by the different sharers in claiming their respective shares had weighed with the Trial Court and had arrived at a finding that there should have been a oral partition without any evidence to that effect, which in my considered view is not on proper appreciation of evidence.
20. There is no perversity lies in the finding of the first appellate court, as it is based on proper appreciation of evidence. This court cannot ask reasons for the reasonableness in coming to the conclusion arrived at by the first appellate court, when this court is unable to find any legal infirmity on such findings. Accordingly, the substantial questions of law are answered against the Appellants.
21. In the result, this Second Appeal is dismissed. No costs.
Srcm To:
1.The Principal District Court, Erode
2.The District Munsif cum Judicial Magistrate, Perundurai
3.The Record Keeper, VR Section, High Court, Madras