The Second appeal had been filed by the first defendant in O.S.No.418 of 1999 on the file of the II Additional Subordinate Court, Madurai.
2. O.S.No.418 of 1999 had been filed by the plaintiff Karuppayee Ammal, seeking partition and separate possession of undivided 1/5th share in the suit schedule properties. When the suit was filed, there were 7 items of properties. The plaintiff had filed the suit against her brother Kakkappan, her mother Pitchiammal and her two sisters Panchavarnam, Jothi and a fifth defendant Periya Karuppan. The fifth defendant http://www.judis.nic.in 3 was impleaded since he was said to be negotiating to purchase the tenancy rights in the 6th and 7th items of properties. Item Nos.1 to 5 were grouped in 'A' schedule and item Nos.6 & 7 were grouped in 'B' schedule. It was stated that the father of the plaintiff enjoyed lease hold rights in item Nos. 6 & 7 to the plaintiff. Pending the suit, the second defendant Pitchai Ammal, the mother of the parties died. Consequently, the shares which was sought was amended from 1/5th to 1/4th undivided share. It must also to be mentioned that on 12.02.2004 three further item of properties were included as 8, 9 & 10 and like item No.6 & 7 undivided share in the tenancy rights were sought in these three properties also. This suit was decreed by the trial Court except with respect of item No.2. The plaintiff was granted a preliminary decree for 1/4th undivided share in item Nos.1, 3 to 10 suit properties. This was by Judgment and Decree dated 23.04.2004 passed by the learned II Additional Subordinate Court, Madurai.
3. Thereafter, the first defendant had filed A.S.No.138 of 2004 which came up for consideration before the Additional District Court (FTC I), Madurai. By Judgement http://www.judis.nic.in 4 and Decree dated 26.07.2006, the preliminary decree was modified and the suit was also dismissed with respect to the 4th item of suit property.
4. Challenging the said Judgment and Decree the first defendant had filed the present Second appeal. At the time of admission, the following substantial questions of law were framed.
1. Whether the Courts below were right in decreeing the suit for partition of items 8, 9, 10 which didn't belong to the HUF and in absence of documents of title to them?
2. When cultivation of items 6 & 7 being a contractual right between the landlord and tenant involving physical labour, can the tenancy right be a subject matter of partition especially when the landlord is not before the Court and when the tenancy right is not the suit item and Appellant has already given up the same?.
5. M.P(MD) No.1 of 2007 had been filed, seeking stay of all further proceedings pursuant to the grant of decree of partition by the trial Court and by the first Appellate Court. Since this Judgment is passed in the main Second appeal itself http://www.judis.nic.in 5 MP(MD) No.1 of 2007 does not survive and is accordingly, closed.
6. M.P.(MD) No.2 of 2008 had been filed by the appellant under Order 41 Rule 27 of Civil Procedure Code, seeking to produce as additional evidence three sale deeds in respect of item Nos.8, 9 & 10 suit schedule properties.
7. In the plaint, the plaintiff had stated that the suit schedule properties originally belonged to her father Ayyannan Ambalam who was an agriculturist. He had two wives. The first wife was Ayyammal and the second wife was Pitchai Ammal. The first defendant Kakkappan was born through the first wife. The plaintiff Karuppayee Ammal, the third defendant Panchavarnam and the fourth defendant Jothi were born through the second wife. Pitchai Ammal who was also impleaded as the second defendant. The other children born to Ayyammal and Pitchai Ammal died even before filing of the suit. The 'A' schedule properties which included item Nos.1 to 5 were said to be house properties. The 'B' schedule properties which included item Nos.6 to 10 were in the http://www.judis.nic.in 6 possession of Ayyannan Ambalam as cultivating tenant. Claiming that the plaintiff has a undivided 1/5th share which was later amended to undivided 1/4th share in the suit properties, the plaint had been filed seeking partition and separate possession.
8. The first defendant challenged the claim of the plaintiff. He specifically stated that item No.2 was purchased by him from his income. He claimed that he was a Government servant and had means to purchase the property. He also claimed exclusive title to item No.4. He further stated that the item Nos.6 to 10 properties were actually owned by other persons and consequently partition cannot be granted.
9. This suit came up for consideration before the II Additional Subordinate Court, Madurai. On the basis of the pleadings, the following issued were framed;
1. Whether the plaintiff was entitled to partition and separate possession as prayed for?
2. To what relief if any plaintiff is entitled to?
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10. During trial, the plaintiff examined herself as P.W.1 and the first defendant examined himself as D.W.1. The plaintiff marked Ex.A.1 to Ex.A.10. Ex.A.5 are house tax receipts and Ex.A.6 is Adangal and Ex.A.10 is also Adangal. On the side of the defendant, Ex.B.1 to Ex.B.5 were marked. Ex.B.1 was original sale deed with respect to item No.2 property and Ex.B.4 was original sale deed with respect to item No.4 property.
11. On consideration of the oral and documentary evidence, the learned Additional Subordinate Judge, Madurai by Judgment dated 23.04.2004 held that the plaintiff is entitled to undivided 1/4th share in item Nos.1, 3 to 10. She negatived the claim of the plaintiff with respect to the second item of suit property.
12. The first defendant as stated above filed A.S. No.138 of 2004 which came up for consideration before the Fast Track Court-I, Madurai. By Judgment dated 26.06.2006 the learned Additional District Judge/Fast Track Court Judge, Madurai found that the item No.4 property was http://www.judis.nic.in 8 also the exclusive property of the first defendant/appellant and consequently, modified the decree and judgment and granted partition and separate possession of undivided 1/4th share with respect to item Nos.1, 3, 5 to 10. Challenging the above Judgment, the first defendant had filed the present Second appeal.
13. Heard arguments advanced by Mr.T.S.R.Venkatramana, learned counsel for the appellants and Ms.P.Jessi Jeeva Priya for Ms.A.Bhuvaneshwari, learned counsel for the first respondent. The second and third respondents remained exparte.
14. Mr.T.S.R.Venkatramana, urged the Court to consider M.P(MD) No.2 of 2008 which was an application under Order 41 Rule 27 of Civil Procedure Code to accept as additional evidence, certified copies of sale deed dated 13.10.1997 in favour of Sivasundaram with respect to item No.8 property, sale deed dated 31.01.1998 in favour of Janaki with respect to item No.9 property and sale deed dated 22.03.2002 in favour of Janaki with respect to item No.10 http://www.judis.nic.in 9 property. The learned counsel stated that item Nos.8, 9 & 10 properties were the absolute properties of the above mentioned persons and consequently, partition cannot also be granted with respect of those properties. The learned counsel also stated that with respect to 6 & 7 items of properties one Hamanth was the owner of the properties and consequently, partition cannot also be granted of those properties. The learned counsel stated that even according to the plaint, the father Ayyannan Ambalam was a cultivating tenant in the said properties. It is also to be mentioned that Item Nos.8, 9 & 10 were included in the schedule only on 12.02.2004 eventhough the suit had been filed in the year 1999. The learned counsel further stated that the appellant had no objection for grant of partition with respect of item Nos.1, 3 & 5 properties.
15. Ms.Jessi Jeeva Priya, learned counsel for the respondent disputed the said contentions. According to her, the application under Order 41 Rule 27 of the Civil Procedure Code was filed before the first Appellate Court to take on record the very same sale deeds now filed as additional http://www.judis.nic.in 10 evidence and the first Appellate Court declined to grant such relief and had dismissed the application. The learned counsel stated that no further steps in accordance with law had been taken as against the order of dismissal. Consequently, the learned counsel urged that M.P.(MD) No.2 of 2008 has also to be dismissed. The learned counsel also stated that the first respondent who was the plaintiff is entitled to an undivided 1/4th share in item Nos.1, 3, 5 to 10 of the suit properties.
16. I have carefully considered the arguments advanced.
17. The first respondent who seeks partition and separate possession, should first prove the title of the properties for which partition is claimed. The burden cannot be shifted to the appellant who had questioned the title with respect to item Nos.6 to 10. Even in the plaint, originally only seven items of properties were shown. Item Nos.6 & 7 were shown in the 'B' schedule and it was stated that Ayyanan Ambalam was a cultivating tenant. Documents have not been filed along with the plaint to establish such fact. Pending the http://www.judis.nic.in 11 suit, on 12.02.2004, three further items were included in schedule 'B' as item Nos.8, 9 & 10. Very unfortunately, P.W.1/first respondent had already tendered evidence in chief on 06.01.2004 and again on 21.01.2004. She was also cross examined on 28.01.2004. D.W.1/Appellant was examined in chief on 12.02.2004 and was cross examined on 16.02.2004. No further evidence was recorded. However, after closure of the oral evidence on the side of the first respondent, the learned trial Judge had allowed the application for amendment and had included item Nos.8, 9 & 10. There is no documentary or even oral evidence to hold that the first respondent was entitled to an undivided share over the said properties.
18. As stated above, the first respondent as plaintiff has to prove title over the suit properties and that they were available for partition. The trial Court and first Appellate Court held that the first respondent who is entitled for partition and separate possession of item Nos.1, 3 & 5 which were given in 'A' schedule in the plaint. They also granted partition and separate possession of item Nos.6 to 10 which were given in 'B' schedule without examining whether http://www.judis.nic.in 12 there was any evidence to support the claim of the first respondent that Ayyanan Ambalam was a cultivating tenant in the said properties.
19. As a matter of fact, there is absolutely no evidence with respect to item Nos.8, 9 & 10. It is the case of the appellant that item Nos.6 & 7 were owned by one Hamanth and item No.8 was owned by Sivasundaram and item No.9 & 10 were owned by Janaki. To substantiate this, M.P. (MD) No.2 of 2008 had been filed. It is also found that in the plaint, in the schedule, the plaintiff had given the name of village as Kannivadi Village with respect to item Nos.8, 9 & 10 properties. However, the correct name of the village was Kannukudi village.
20. In view of the fact that the description of the properties had been wrongly given with respect to item Nos.8, 9 & 10 properties in the plaint and since with respect to item No.6 & 7 another person called Hamanth was said to be the owner. I hold that the Judgment and Decree of the trial Court and the first Appellate Court granting partition of the item http://www.judis.nic.in 13 Nos.6 to 10 has to be interfered with. M.P.(MD) No.2 of 2008 will have to suffer an order of dismissal, since the burden is only the first respondent to prove title. An earlier application having been rejected by the first Appellate Court it would not be proper on the part of this Court to entertain a similar application.
21. The first respondent had not discharged her burden to prove the actual title of item Nos.6 to 10 and that Ayyannan Ambalam was actually a cultivating tenant in item Nos.6 to 10.
22. The substantial questions of law framed also revolve around the same issues. The first substantial question of law was the whether the Court below were right in decreeing the suit with respect to item Nos.8, 9 & 10 which did not belong to the HUF and in the absence of documents of title. It is answered that the Courts below erred in granting partition and separate possession.
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23. With respect of second substantial question of law relating to item No.6 & 7, I hold that the first respondent had not proved that Ayyannan Ambalam was a cultivating tenant and even otherwise partition cannot be granted in the absence of the landlord as a party to the suit.
24. I hold that the relief of partition has to be rejected with respect to item Nos.6 – 10 in the 'B' schedule of the plaint.
25. Accordingly, the Second appeal is partly allowed. The Judgment and Decree of the first Appellate Court is modified by granting partition and separate possession of 1 / 4 undivided share to the first respondent only with respect to item Nos.1, 3 & 5 properties of 'A' schedule to the plaint.
26. The dismissal of the suit in O.S.No.418 of 1999 with respect to item No.2 property of 'A' schedule and dismissal of the suit in A.S. No.138 of 2004 with respect to items Nos.2 & 4 in 'A' schedule is confirmed. The suit is also http://www.judis.nic.in 15 dismissed with respect to item Nos.6 to 10 properties of 'B' schedule. The parties are permitted to file an application for final decree in accordance with rules.
27. The Second appeal is partly allowed, however in the circumstances without costs. Consequently, M.P.(MD) No. 1 of 2007 is closed and M.P.(MD) No.2 of 2008 is dismissed.
1. The Additional District Sessions Judge, The Additional District Court / FTC-I, Madeira.
2. The II Additional Subordinate Judge, The II Additional Sub Court, Madurai.
3. The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
Pre-Delivery Judgment in S.A.(MD) No. 318 of 2007 and M.P. (MD)Nos.1 of 2007 & 2 of 2008 18.09.2018 http://www.judis.nic.in