Babu S/O Perumal Naidu v. Rengadoss Naidu

JUDGMENT The plaintiffs in O.S.No.109 of 2001 on the file of the Subordinate Court, Cuddalore, which was re-numbered due to enhancement of pecuniary jurisdiction as O.S.No.158 of 2004, on the file of the Additional District Munsif, Cuddalore, are the appellants in this Second Appeal. The parties are referred to in the same rank as before the Trial Court.

¶2The plaintiffs sought for the relief of declaration, permanent injunction and recovery of damages. The case of the plaintiffs is that there were two brothers, namely, Narayanasamy Naidu and Venkatasamy Naidu, were the owners of the schedule mentioned properties. The brothers partitioned several properties amongst themselves and kept apart the suit property to be enjoyed in common. This was by way of a registered partition deed dated 15.09.1936, which is marked as Ex.B.1. The suit schedule property is marked as D-Schedule property in the said partition deed.

¶3The said Narayanasamy Naidu had four children, namely, Dhandapani, Srinivasalu, Jayaraman and Ramanujam. Dhandapani had two daughters, one of whom is called Delli Bai. The said Delli Bai sold the property on 01.09.1988 in favour of Raghu Naidu who is the 2nd defendant. Another son of Narayanasamy Naidu, one Jayaraman settled his undivided 10 cents in favour of his son Subramania Naidu on 23.12.1980. The said Subramania Naidu in turn sold the property in favour of one Neelathachi Ammal on 09.06.1983. The said Neelathachi Ammal inturn sold the property to Raghu Naidu on

04.03.1998. The 1st defendant, Rangadoss Naidu purchased the property directly from Srinivasalu Naidu by way of sale deed dated

24.11.1983. The plaintiffs claimed adverse possession as the D-Schedule property in the partition deed, which is the subject matter of the present suit, was not included in the plaint schedule property in O.S.No.205 of 1964. The said suit was a partition suit filed amongst the legal heirs of the said Narayanasamy Naidu.

¶4Now we have to move to the other branch, namely, the branch through Venkatasamy Naidu. The head of this branch is one Venkatasamy Naidu and he had three sons, namely, Perumal Naidu, Duraisamy Naidu and Bashyam Naidu (the defendants claimed that his name was not Srinivasalu Naidu but was Bashyam Naidu). There has been no litigation in the family of Venkatasamy Naidu and the plaintiffs on the death of Perumal Naidu claimed that since Venkatasamy Naidu had enjoyed the property exclusively, they succeeded to the estate through their father Perumal Naidu. Therefore, by ouster they are entitled to the entire 80 cents.

¶5On a consideration of the oral and documentary evidence the learned Additional District Munsif, Cuddalore, had dismissed the suit. This Judgment and Decree was taken on appeal by the appellants herein to the I Additional Subordinate Court, Cuddalore in A.S.No.28 of 2005. The learned I Additional Subordinate Court, Cuddalore concurred with the finding of the Trial Court and dismissed the appeal. Challenging the same the plaintiffs are the appellants before this Court

¶6This Second Appeal was admitted on the following Substantial Questions of Law: "1.When the appellants had proved their long, open uninterrupted and hostile possession to the exclusion of the respondents and their predecessors in title for over the statutory period, Whether the courts below are correct in law in rejecting the claim based on Ouster, merely because such right was claimed under the nomenclature of prescriptive title?

2.When it is axiomatic in law that the mofussil pleadings cannot be viewed with ritualistic rigour, Whether the use of wrong phrase, would disentitle the appellants from Claiming a right to which they are otherwise entitled to?

3.Whether the lower appellate Court is correct in law in summarily rejecting the document produced at the appellate stage, in contravention of the provisions of Order 41 Rule 27 of the Code of Civil Procedure?

¶7I have carefully considered the arguments of the learned counsels appearing for the appellants and the respondents.

¶8The claim of ouster has to be proved strictly, especially when the plaintiffs have to come forward with a case that they are co-owners. Despite being aware of being excluded from joint family property, the defendants kept quiet and permitted the co-sharers in possession to enjoy the property exclusively as their own. In the case on hand I do not have to look further than the admission made by P.W.1 in the following lines: "vd; je;ij bgUkhs; eha[Lnth my;yJ thjpfshfpa eh';fnsh tHf;F brhj;J 80 brz;oYk; KGtJk; v';fSf;nf ghj;jpak; vd;W vGj;J K:ykhf cupik cz;L vd;W ve;j fhyj;jpYk; TwpaJ fpilahJ/ "fpiuak; bfhLj;j 3 egu;fs; nghf kw;w 4 ghf!;ju;fsplk; vd; je;ijnah thjpfshfpa eh';fnsh vGj;JKykhf tpLjiyg;gj;jpuk; vGjp th';ftpy;iy/ tHf;F brhj;J bghWj;J gh!;ju;fSf;F vjpupilahf eh';fs; vg;nghJk; mDgt ghj;jpak; bfhz;lhoaJ ,y;iy

"

¶9This admission of P.W.1 shows that at no point of time they had enjoyed the property exclusively. On the contrary, the documents filed by the defendants would go to show that they had exercised their right as co-owner and had alienated their undivided 10 cents of lands on 23.12.1980, 09.06.1983, 04.03.1998 and 01.09.1998. Apart from this, the plaintiffs' branch through Venkatasamy Naidu had also exercised their right and had alienated undivided 10 cents on

24.11.1983 in favour of the 2nd defendant.

¶10Mr. G.R.M.Palaniappan, learned counsel for the appellants / plaintiffs would submit that as this property had not been included in O.S.No.205 of 1964, which is the partition suit suit between the family members of Narayanasamy Naidu, implies that they do not claim a share over this property. I am not able to agree with the said submission because of the following aspects: O.S.No.205 of 1964, as already stated was a partition suit amongst the brothers, namely, Narayanasamy Naidu and Venkatasamy Naidu. Admittedly, in the instant case, the share of D-schedule property in the partition deed dated 15.09.1936 was kept in common. When the property has been kept in common and when the parities do not want to break the unity of ownership, I cannot presume that presentation of O.S.No.205 of 1964 meant that they do not claim any share over the property, held in common by family members of Narayanasamy Naidu and Venkatasamy Naidu.

¶11The long possession of co-owner does not fructify into ouster. The evidence on record shows that few of the co-owners have exercised their right and had alienated the property in favour of the defendants.

¶12The learned counsel for the appellants would make a plea that a decree for partition can be granted in the suit. I am afraid that I cannot do that in the present proceedings because all the sharers are not before this Court and the defendants have only purchased the shares of Dhandapani Naidu, Jayarama Naidu and Srinivasalu Naidu. The plaintiffs have not impleaded any of the legal heirs of Srinivasalu Naidu, Ramanuja Naidu i.e., sons of Narayanasamy Naidu nor their paternal uncle Duraisamy Naidu or his legal heirs.

¶13In the absence of all the sharers before this Court, the issue under Order VII Rule 7 of the Code of Civil Procedure cannot be exercised to grant decree for partition. The properties being enjoyed in common and all being the co-owner the question of granting injunction also does not arise. Hence, the Substantial Questions of law are answered against the appellants.

¶14In the result, the Second Appeal is dismissed. Considering the relationship between the parties no cost is being imposed.

20.03.2023

Index : Yes/No Internet : Yes/No kan To

1.The I Additional Subordinate Court, Cuddalore.

2.The Additional District Munsif Court, Cuddalore

V.LAKSHMINARAYANAN, J.

kan

20.03.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.03.2023 CORAM THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN 1. Babu 2. Dayalan (Deceased) 3. D.Chandra 4. D.Muthukumaran 5. Sumitha ...Appellants (Appellants 3 to 5 brought on record as LRs of the deceased 2nd appellant vide order of the Court dated 25.11.2014 in M.P.Nos. 1 to 3 of 2014 in S.A.No.555 of 2006). Vs. 1. Rangadass Naidu 2. Raghu Naidu ...Respondents Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the I Additional Subordinate Court, Cuddalore dated 14.10.2005 in A.S.No.28 of 2005 confirming the Judgement and Decree of the Additional District Munsif Court, Cuddalore dated 30.09.2004 in O.S.No.158 of 2004. For Appellants : Mr. G.R.M.Palaniappan For Respondents : Mr. D.Baskar