The plaintiff is the appellant.
2.The plaintiff filed O.S.No.289 of 1998 before the District Munsif Court, Padmanabhapuram for the 2/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 relief of partition. The suit was decreed and preliminary decree was granted in favour of the plaintiff for 1/3rd share. The 5th defendant filed A.S.No.59 of 2002 before the Sub Court, Padmanabhapuram. The learned Subordinate Judge allowed the appeal and dismissed the suit. As against the same, the plaintiff has filed the present Second Appeal.
3.It is the case of the plaintiff that the suit schedule properties were originally owned by one Bakianathan who died instate leaving behind the plaintiff and two other sons namely, Selvamani and Gnanamani. Selvamani's legal heirs are the defendants 1 to 3. Gnanamani's legal heirs are the defendants 4 to
6. The plaintiff contended that the suit schedule properties are the separate properties of Bakianathan and on his death, he is entitled to 1/3rd share in the suit schedule properties. The plaintiff further contended that the parties are in joint possession of the suit schedule properties.
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4.The 5th defendant filed a written statement contending that the daughters of Selvamani and Gnanamani have not been impleaded and the suit is bad for non-joinder of necessary parties. The defendant further contended that another property of Bakianathan had not been included in the suit schedule and hence, the suit is bad for partial partition. The 5th defendant further contended that he had put up a house in the suit schedule property in the year 1978 itself and he is in enjoyment of the said house property after making several improvements. The defendant further contended that since the defendant is in exclusive possession of the said house property, the plaintiff has lost his rights under the principles of Ouster.
5.The plaintiff had filed a reply statement contending that two items were purchased by Bakianathan under Exhibit A1. Out of this, the first item consisted of 7 ½ cents and it was orally partitioned among three brothers already and hence, the non-inclusion of the said property in the present suit would not attract the 4/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 principle of partial partition. The plaintiff further contended that all the sons of Selvamani and Gnanamani have been impleaded and hence, there is substantial representation of their estate and hence, the non- inclusion of daughters would not be a fatal to the suit.
6.The plaintiff further contended that the possession is joint among the parties. Hence, the plea of ouster is not sustainable in law. The trial Court gave a finding that one of the items covered under Exhibit A1 sale deed has already been partitioned and hence, the present suit is not hit by the principle of partial partition. The trial Court has also found that the daughters of Selvamani and Gnanamani would claim their shares only within 1/3rd to be allotted to the legal heirs of Selvamani and Gnanamani and hence, the suit is not bad for non-joinder of necessary parties. The trial Court also found that the 5th defendant has put up a construction in the suit schedule properties and the plaintiff has agreed to pay his 1/3rd share of 5/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 cost for the said construction. Hence, the trial Court decreed the suit for 1/3rd share in favour of the plaintiffs with a direction to the plaintiff to pay 1/3rd value of building to the 5th defendant.
7.The First Appellate Court reversed the finding of the trial Court and held that the suit schedule property belongs to the 5th defendant since he has perfected title by adverse possession. The First Appellate Court also found that the non-joinder of the daughters of Selvamani and Gnanamani would be fatal to the case. On the above finding, the First Appellate Court allowed the appeal and dismissed the suit.
8.Aggrieved over the same, the present second appeal has been filed and it was admitted on the following substantial questions of law:
1.Whether the judgment and decree of the lower Appellate Court are correct and sustainable, since it has held that the fifth defendant is entitled to the suit property by way of adverse possession, 6/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 which was not even pleaded by him, and the details of which are not stated by him, since he is a co-sharer of the property, and in view of the other circumstances of the case?
2.Whether the judgment and decree of the lower appellate Court holding that the fifth defendant is entitled to the property by ouster are correct and sustainable, in the circumstances of the case?
3.Whether, in view of the evidence of D.W.1, especially admissions therein, and lack of evidence for the defendants, at the judgment and decree of the lower appellate Court are correct and sustainable?
9.The trial court has held that the suit is not hit by the principles of partial partition. This finding has not been reversed by the First Appellate Court. The First Appellate Court has mostly proceeded upon basis that the 5th defendant has perfected title by adverse possession and the plaintiff is not entitled to any share in the suit schedule properties. As regards 7/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 one of the items covered under Exhibit A1, the property has been orally partitioned among three sons of Bakianathan. The said item having an extent of 7 ½ cents was partitioned among the three brothers each having 2 ½ cents. The legal heirs of Selvamani who are entitled to 2 ½ cents, have sold 1/3rd of the said 2 ½ cents to the plaintiff under Exhibit A3. The balance 3/4th share has been sold by defendants 1 to 3 in favour of one Vethapoo who is the mother of the 5th defendant under Exhibit A4 dated 04.02.1988. These two documents namely Exhibits A3 and A4 will indicate that there was an oral partition and one of the items has already been partitioned among the brothers. In fact, Exhibit A4 in favour appellant's mother is of the year 1988. The present suit has been filed on 12.10.1998. No documents have been produced on the side of the 5th defendant/appellant to show that he has excluded the possession of the plaintiff and he has been in exclusive possession of the suit schedule properties. 8/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005
10.Moreover, in the present case, some of the other defendants have also put up construction in the suit schedule properties and the said fact is admitted in the deposition of PW1. This will clearly indicate that the parties have been residing in certain portions of the suit property for their convenience and there is no division by metes and bounds.
11.The 5th defendant in his written statement has pleaded that there was an oral partition in the family and the present suit schedule property has been allotted to the 5th defendant and he is enjoying the same. Except the pleading in the written statement, no oral and documentary evidence has been produced to show that the suit property was already partitioned. The burden of proof to prove the oral partition is upon the party who is asserting that there was an oral partition in the family. In the present case, the said burden has not been discharged by the 5th defendant. When the 5th defendant pleads oral partition and he is in enjoyment of the suit schedule properties as per oral partition, 9/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 he cannot take contradictory plea of ouster as against the plaintiff. Unless the 5th defendant admits the share of the plaintiff, the question of pleading ouster does not arise. Hence, the defence of oral partition and ouster are not sustainable in law and liable to be rejected.
12.The First Appellate Court has allowed the appeal on the ground that the plaintiff has not chosen to implead the daughters of the deceased Selvamani and Gnanamani. In the present suit, the sons of Selvamani and Gnanamani are already on record. Though they substantially represent the respective 1/3rd share of Selvamani and Gnanamani, the daughters, if they are so advised, can be impleaded even during the final decree proceedings to work out their shares within the respective 1/3rd share of Selvamani and Gnanamani. Hence, the plaintiff need not be non-suited on the ground of not impleading the daughters of other co-sharers. The First Appellate Court has erroneously allowed the appeal on the ground of non-joinder of daughters and dismissed the suit.
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13.In view of the above said discussions, this finding is liable to be reversed and the suit is maintainable, in view of the substantial representation of the estate. All the substantial questions of law are answered in favour of the appellants.
14.In view of the above discussion, the second appeal filed by the plaintiff is allowed. The judgment and decree of the First Appellate Court is set aside and the judgment and decree of the trial Court is restored. No costs.
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized 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.
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1.The Subordinate Judge, Padmanabhapuram
2.The Principal District Munsif Padmanabhapuram
3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 12/13 https://www.mhc.tn.gov.in/judis S.A..(MD).No.26 of 2005 R.VIJAYAKUMAR,J.
msa Pre-delivery Judgment made in S.A(MD).No.26 of 2005 26.11.2021 13/13 https://www.mhc.tn.gov.in/judis