The plaintiff is the appellant herein. The suit for declaration and delivery of possession filed against the defendant, who is none other than the widow of the plaintiff's brother, was dismissed by the trial Court and the same was confirmed by the first appellate Court.
2. According to the plaintiff, the suit property, which is the house and vacant site, is originally owned by one Karuthiruma gounder. He had three sons by name Subbaiyan, Thangavelu and Chinnamuthu. Thangavelu is the plaintiff and wife of late Chinnamuthu is the defendant.
3. The case of the plaintiff is that the suit property was inherited by three sons of Karuthiruma gounder and on the death of Karuthiruma gounder in the year 1962, Subbaiyan being the elderest son had got patta and electricity connection in his name. During the second week of January 1986, the partition was effected among the brothers and they are enjoying their respective shares peacefully for more than 20 years. After the death of Chinnamuthu on 15.05.2004, his widow, who is in occupation of the share allotted to her husband, started disturbing peaceful possession of the plaintiff share. On 20.04.2007, taking advantage of his absence in the suit property, she has occupied the suit property and refuse to vacate it. Therefore, he sought for declaration and possession based on the oral partition effected in the year 1986 and in alternate based on adverse possession.
4. The said suit was contested by the defendant on the ground that the plaintiff never been in possession of the suit property. It is the defendant, who is living in the house bearing D.No.2/131. She disputed the fact of oral partition between the family members. According to her, the suit property having three houses bearing D.No.2/131, 2/132 and 2/133 have three separate service connections. All are in the name of Subbaiyan the eldest member of the family. There was no peremanent partition in the suit property. As far as the house bearing D.No.2/131 with service connection 217 concern, it is in her possession and enjoyment for more than 30 years and therefore, the plaintiff is not entitled for declaration or delivery of possession either based on the alleged partition or on the ground of adverse possession.
5. Before the trial Court, on behalf of the plaintiff, the plaintiff and his brother Subbaiyan were examined as P.W.1 and P.W.2 and on the behalf of the defendant, the defendant and one Kariammal were examined as D.W.1 and D.W.2. On behalf of the plaintiff, 15 exhibits were marked and on behalf of the defendant, 8 exhibits were marked. The trial Court as well as the first appellate Court disbelieved the case of the plaintiff and have held that though there was 3 separate dwelling units with separate door number and electricity service connections, it is only separation for sake of convenience and no formal partition has taken place between the sons of Karuthiruma gounder in the year 1986 as averred by the plaintiff. Having failed to prove the partition, the Courts below have held that the plaintiff is not entitled for declaration or delivery of possesssion as prayed. In the above said circumstances, the aggrieved plaintiff has preferred the second appeal raising the following Substantial Question of Law:
“Whether the Courts below are correct in holding that there is no partition between the plaintiff and his brothers since 1986 onwards, inspite of the fact that three separate door numbers, three separate electricity service connections and separate lease to tenants?”
6. The learned counsel appearing for the appellant submitted that the Courts below miscerably failed to appreciate the fact that there are three dwelling units with three electricity service connections and each of the brother is independently enjoying their respective shares for more than 20 years. For want of mutation of record, the Courts below have disbelieved the partition, which was geninue and acted upon for more than 20 years. He further submitted that the Courts below have drawn an adverse inference against the plaintiff for his failure to produce evidence to show his actual occupation of the suit premises over looking Ex.A14 which is tax receipts. Contrary to documents to show that the defendant is in occupation of the suit premises bearing Door No.2/133 and not in No.2/131. The Courts below failed to accept the evidence of Subbaiyan examined as P.W.2, just because he happen to be the brother of the plaintiff. For extraneous reason, the Courts below have disbelieved the evidence of P.W.2.
7. Per contra, the learned counsel appearing for the respondent submitted that the Courts below have not given much credence to the evidence of P.W.2 because he not only happen to be the brother of the plaintiff, he had been enemical toward the defendant. The fact has been admitted by the witness himself. Further, when there is no evidence let in by the plaintiff regarding his possession. Admittedly, he was an employee in panchayat union at Sathyamangalam and residing at Sathyamangalam, in such circumstances plead of possession for more than 20 years and dispossession by the defendant in the year 2007 is totally unbelievable. The Courts have rightly rejected his evidence and dismissed the suit. Hence, there is no ground to interfere with the judgment and decree of the trial Court.
8. The admitted fact in this case is that the suit property originally owned by Karuthiruma gounder and inherited by his three sons. It is also admitted by the parties that there are three separate dwelling units with separate door numbers and service connections. Even since the life time of Karuthiruma gounder, the physical feature of the suit property is unaltered. This fact is elicited by P.W.2-Subbaiyan, who is one of the sons of Karuthiruma gounder. The evidence of P.W.2, who is the competent person to speak about the partition, has deposed how the property has been divided among three brothers and has been enjoyed by them since 1986. Though patta for entire property stands in the name of the witness, he concedes the fact that after the death of his father in the year 1962, he obtained three separate service connection for the three portions in his name and got the patta change in his name and each of them are living in their respective portions of the partition in the year 1986. While he is occuping the house bearing D.No.2/132, the plaintiff was allotted D.No.2/131 and his deceased brother Chinnamuthu was allotted 2/133. To that effect, Ex.A4 tax receipts in the respective name is relied by the plaintiff. Till the demise of his brother, there was no quarrel among them but, after his demise, the defendant has forcebily occuping the suit property allotted to the plaintiff.
9. The first appellate Court has grossly erred in holding that since P.W.2 Subbaiyan is not in talking terms with the defendant, he has deposed against the defendant. In fact, he has not said anything against the defendant. He is only placed on record, how the property of Karuthiruma gounder devolved upon his sons and their peaceful partition of their respective share and continuous enjoyment. The absence of the landlord cannot be a justification for the co-owner to traspass into his land without his leave or permission and stake claim over the portion.
10. The general principle that there cannot be an injunction against the co-owner, will not apply to the case of this nature, when the co-owner himself is a aggressor. The Courts below had failed to see that Karuthiruma gounder died as early as 1962, till death of Chinnamuthu the husband of the defendant in the year 2004 there was no dispute among his sons and they were peacefully living in their respective portions. That being the case, there is no reason to disbelieve the partition among the brothers. When there is telltale evidence of three distinct portions of the suit property with distinct door numbers, service connections and tax assessment. The first appellate Court has taken this fact as separation for convenience and no formal partition. Even if it is so, the defendant has no right to trespass into the portion allotted to the plaintiff/appellant. This fact has totally been ignored by the first appellate Court, which expose the perversity in the judgment.
11. When the first appellate Court has held that there is a separation for sake of convenience, he should have at least identified which portion the respective parties were allotted and enjoying. Without answering that, the Courts below have just disbelieved the version of the plaintiff, unmindful of physical division of land in three parts. Non mutation of revenue records or transfer of service connection cannot be a reason for disbelieving the partition, when the person in whose name the patta and electricity service connection for the entire property stands himself has deposed before the trial Court that there was a partition among the brothers and each of them are enjoying their respective share and the plaintiff is enjoying the suit property bearing D.No.2/131 and the defendant is enjoying the house bearing D.No.2/133.
12. It very shocking that the courts below have conveniently disregarded the above evidence and the tax assessment of the properties separately in the name of each sons of Karuthiruma Gounder since 1991. While tax for Door No.2/103 later renumbered as Door No.2/131 assessed in the name of the plaintiff, the tax for Door No.2/104 later renumbered as Door No.2/133 and assessed in the name of the defendant's husband. Inspite of this evidence, the Courts below have not accepted the partition for the reason that the patta has not been changed in the respective parties name even after partition in the year 1986 and natham survey in the year 1994.
13. Therefore, this Court is constrained to set aside the judgments of the Courts below on the ground of perversity. For the above said reasons, the judgment and decree of the Courts below is set aside.
14. In the result, the Second Appeal is allowed. No order as to costs.
(i) The plaintiff is entitled for declaration in respect of the suit property bearing Door No.2/131. The decree in this suit shall no way prevent the defendant from enjoying Door No.2/133 and the electricity service connection thereof, which was allotted to her husband late Chinnamuthu.
(ii) The respondent is directed to vacate and hand over the vacate possession of the suit property bearing D.No.2/131 to the appellant within a period of three months from the date of receipt of a copy of this judgment.
Consequently, connected Miscellaneous petition is also closed.
13.02.2017 Index:Yes/No Internet:Yes/No To II Additional Subordinate Judge, Gobichettipalayam. The District Munsif, Sathyamangalam.
Dr.G.Jayachandran, J.
ari
S.A.No.1082 of 2009
13.02.2017