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Ramalingam Represented by his Power agent Lakshmi v/s Vinaitheerthan & Others

    S.A. No. 1248 of 1997 & CMP(MD). No. 8157 of 2016 & CMP. No. 12198 of 1997

    Decided On, 07 December 2021

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. VIJAYAKUMAR

    For the Appellant: S. Ramesh, V. Ragavachari, Advocates. For the Respondents: R14 to R18, VR. Shanmuganathan, AL. Kannan, R19 & R20: G. Prabhurajadurai, Advocates.



Judgment Text

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and order of the Court of the Subordinate Judge, Devakottai in A.S.No.57 of 1991 and dated 11.08.1993 in confirming the judgment and decree of the Court of the District Munsif, Devakottai in O.S.No.336 of 1985 and dated 08.08.1991 in dismissing the suit.)

1. The plaintiff is the appellant herein.

2. The plaintiff filed O.S.No.336 of 1985 before the District Munsif Court, Devakottai, for the relief of declaration of title and permanent injunction. The suit was dismissed. As against the same, the plaintiff filed the A.S.No.57 of 1991 before the Sub Court, Devakottai. The appeal was also dismissed. As against the same, the present second appeal has been filed by the plaintiff.

3. The plaintiff had contended that the plaintiff and his brother formed a Hindu joint family and the said joint family was a member of Senjai Nattar. The plaintiff contended that in the property of Senjai Nattar, the plaintiff's family was entitled to 1/44th share. The plaintiff further contended that the said property and other properties were partioned between the father of the plaintiff on one hand and the minor sons on the other hand, represented by her mother under Exhibit A1 partition deed. According to the plaintiff, in the said partition deed, except the share of the other co-sharers, the father's share was partitioned in entirety. The plaintiff further contended that the properties of Senjai Nattar was the subject matter of a partition suit in O.S.No.400 of 1962. In the said suit, apart from the suit schedule property, some other properties were also allotted to the share of the plaintiffs family. In the year 1978, there was an oral partition in the family and in the said partition, the suit schedule properties were allotted to the share of the plaintiff. Though a partition list was prepared, it was mis-placed by the plaintiff. The plaintiff further contended that from the year 1978 onwards, the suit schedule properties are in his possession. The plaintiff further contended that the 2nd defendant has filed O.S.No.43 of 1970 for recovery of money against 3rd defendant. The 3rd defendant's property was brought to auction on 31.01.1985. The first defendant was the Court auction purchaser. The 3rd defendant does not have any right over the suit schedule properties. The plaintiff further contended that the Court auction held in E.P.No.167 of 1984 will not bind the plaintiff. Hence, he prayed for a decree for declaration of title and permanent injunction.

4. The first defendant filed a written statement contending that when Exhibit A1 came into existence, the father of the plaintiff was not allotted any share in the Senjai Nattar property. A share in Senjai Nattar family was allotted to the plaintiff's family only in the year 1968 and after allotment, the suit schedule property was the separate property of the 3rd defendant. Any allottment made in favour of the 3rd defendant in O.S.No.400 of 1962 is a separate property and the plaintiff or other sons of 3rd defendant are not entitled to any share. Hence, the suit schedule properties were rightly brought to auction for the loan borrowed by the 3rd defendant and in the Court auction sale, the 1st defendant has purchased the property.

5. The 4th defendant filed a written statement contending that neither the plaintiff nor the 1st defendant have any title or possession over the suit schedule properties. The defendants 5 and 6 filed a joint written statement contending that the suit is not maintainable and the Court auction will be binding upon the plaintiff.

6. The defendants 7 to 12 filed a written statement contending that the suit schedule properties are the obsolute properties of the first defendant. The trial Court after considering the oral and documentary evidence, came to the conclusion that the patition yadasthu dated 07.07.1979 has not been produced before the Court. The trial Court further came to the conclusion that the said properties are the separate properties of the deceased Subbiah Ambalam and hence, the first defendant was legally entitled to take the said property in Court auction under Exhibit B6 and the Court also came to the conclusion that based on patta and kist receipts, the Court cannot decide about the title of the plaintiff. Based on the said findings, the suit was dismissed by the trial Court. The plaintiff filed A.S.No.57 of 1991 and the defendants 1, 4 to 12 filed a Cross Appeal before the first appellate Court. The first appellate Court confirmed the findings of the trial Court and dismissed the appeal. As against the same, the present second appeal has been filed. The second appeal was admitted on the following susbstantial questions of law:

“1. Whether the Courts below are right in holding that the suit property is the self-acquired property of Subbiah Ambalam especially when the same had been secured by him at the time of partition of the joint family properties in O.S.No.400 of 1962 on the file of the District Munsif, Devakottai?

2.Whether the Courts below are right in holding that the partition between the family members in 1959 and the suit property had been allotted to the third defendant in the partition there afterwards and will not form subject matter of division between the plaintiff and defendants 4 to 6?

3. Whether the Courts below should not have held that the property had been allotted to the plaintiff and would be evident from Ex.A.4 and mere non-production of the arrangement will not believe the case of the plaintiff?”

7. It is not in dipute that there was a family partition among the family members of the plaintiff under Exhibit A1 partition deed. At the time of said Exhibit A1 partition deed, the suit schedule property was the joint property of Senjai Nattar. The plaintiff's family was only having a right to claim a share in the joint property of Senjai Nattar. In view of the above said facts, there is no reference in Exhibit A1 either to retain the suit schedule property as a joint property or to divide the property after it is allotted to the family. Hence, it is evident that Exhibit A1 does not contain any reference about the suit schedule properties. The next contention of the plaintiff is that the suit schedule property was allotted to his share in the oral partition and a partition list was prepared in the form of yadasthu on 07.07.1979. However, this document was not filed before the Courts below.

8. The fourth defendant also made a rival claim to the same suit schedule property contending that it was allotted to his share in the same oral partition on 07.04.1978. Hence, it is evident that there is no clarity among the family members of the plaintiff about the alleged allottment of properties in the alleged oral partition dated 07.04.1978.

9. Though the partition list dated 07.04.1978 has been filed as Exhibit B1, the plaintiff has not signed in the said document and the defendants 4 and 6 have disputed their signatures in the said document.

10. The suit schedule properties and other properties have been allotted to the share of 3rd defendant in O.S.No.400 of 1962 in a suit related to the Senjai Nattar's joint property. None of the parties have chosen to file either the preliminary decree or the final decree in the said suit. Unless the preliminary decree and final decree in the suit are produced, the Court cannot arrive at a conclusion with regard to the character of property or allottment of share in favour of the 3rd defendant. Moreover, the first defendant in the suit has purchased the suit schedule properties in the Court auction sale. If really, the property is the absolute property of the plaintiff, he would have intiated action either at the time of attachment or at the time of delivery of properties. The plaintiff has not initiated any steps to prevent the decree being executed in O.S.No.43 of 1970.

11. The learned counsel for the appellant contended that the partition list dated 07.04.1978 was later reduced into yadasthu on 07.07.1979. Since the said document could not be produced before the Courts below, he could not establish his title over the suit schedule property. The appellant in the second appeal has filed C.M.P.No.8157 of 2016 to receive the partition yadasthu dated 07.07.1979 as an additional evidence. According to the learned counsel for the appellant in the said yadasthu, the plaintiff is shown as the 5th party and the suit schedule properties are shown as the 3rd item allotted to the plaintiff. However on perusal of additional evidence, it could be seen that the 3rd item allotted to the plaintiff is 2.29 acres in Survey No. 133. On the other hand, the present suit has been filed for Survey No.132. The additional evidence is no way related to the suit schedule properties and hence, C.M.P.No.8157 of 2016 is rejected as irrelevant.

12. The plaintiff is not sure about tracing of his title. Exhibit A1 partition deed does not refer to the suit schedule property. Though the plaintiff refers to the partition suit in O.S.No.400 of 1962 between the joint owners of Senjai Nattar, neither the preliminary decree nor the final decree has been produced before the Court. Hence, the plaintiff has not proved whether the suit schedule property was allotted in favour of his father or not. Only if the suit schedule property has been allotted to the share of his father, the family members of the plaintiff could share it either under Exhibit B1 partition list or under the alleged yadasthu dated 07.07.1979. When the title of the plaintiff's father itself has not been proved, the question of granting a decree for declaration of title or injunction does not arise.

13. The suit schedule prop

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erties have been brought to auction in execution of a money decree in E.P.No.167 of 1984 in S.C.No.43 of 1970. The first defendant has purchased the suit schedule property in Court auction under Exhibit B6 sale certificate. The money decree or the execution proceedings have not been challenged by the plaintiff. It seems that the present suit has been initiated only to prevent the first defendant from enjoying the fruits of the decree. The plaintiff has neither established his title nor possession over the suit schedule properties. 14. The burden is upon the plaintiff to establish that the suit schedule properties were allotted to his share in a partition among the family members. When he has not produced the preliminary decree or the final decree in O.S.No.400 of 1962, this Court cannot go into the issue whether the suit schedule properties are the self acquired properties of Subbiah Ambalam or not. All the substantial questions of law are answered against the plaintiff. The second appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
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