R.S. Ramanathan, J.@mdashThe unsuccessful defendant is the appellant herein. The respondent/plaintiff filed the suit for the relief of injunction.
2. The case of the respondent/plaintiff was that the suit property and other properties are the ancestral properties of the plaintiff, his father and brother and in an oral partition that took place 20 years ago, prior to the filing of the suit, the suit properties and two other properties were allotted to the share of the respondent/plaintiff and patta was also granted to him in patta No.609 and for the past 20 years, he is enjoying the property and the appellant/defendant on the basis of a document claimed title to the suit property as if, it belonged to the plaintiff''s father and brother and the suit property was allotted to them under the oral partition and they sold the same to the appellant and on the basis of the said sale deed, the appellant/defendant also changed the patta in his name without notice to the respondent/plaintiff and attempted to interfere with the respondent/plaintiff''s possession. Therefore, the suit was filed for the relief stated above.
3. The appellant/defendant contested the suit stating that in the oral partition that took place in the family of the plaintiff''s father and brother, the suit property was not allotted to the plaintiff''s share and in the oral partition, the suit property was allotted to the share of the plaintiff''s father and brother and the father of the respondent/plaintiff was allotted the northern 10 acres in S.No. 106/4 and southern 8.5 acres was allotted to the share of Mr. Thiagarajan, and the plaintiff was allotted the land in S.No. 105/3 and the property in S.No. 130/14 and the plaintiff''s father Thiru. Govindasamy and Mr. Thiagarajan, sold the entire extent in S.No. 106/4, which was later classified into S.No. 106/4A & 4b to the appellant/defendant under a registered sale deed in the year 1996. Thereafter, patta was issued in the name of the appellant/defendant and eversince from the date of sale, the appellant/defendant is in absolute possession of the property and the respondent/plaintiff was also aware of the sale and as a matter of fact, he refused to change the patta and also refused to participate in the sale deed executed in favour of the appellant and the respondent/plaintiff refused to become a party under the sale deed. Therefore, the appellant/defendant is in absolute possession and enjoyment of the suit property.
4. Both the Courts below believed the case of the respondent/plaintiff and held that in the oral partition, the suit property was allotted to the share of the respondent/plaintiff and that was also evidenced by the revenue records filed by him and except the sale deed executed in the year 1996, the appellant/defendant has not produced any record to show that the property was in enjoyment of his vendor prior to the sale and the documents filed by the appellant/defendant were obtained after the filing of the suit and therefore, the plaintiff''s case of oral partition is true and decreed the suit. Hence, this Second Appeal.
5. Mr. J. Ramakrishnan, the learned counsel appearing for the appellant submitted that though the respondent has stated that in the oral partition that took place 20 years, prior to the filing of the suit, the suit property was allotted to his share, he did not state what are the other properties allotted to his share in the said oral partition and the revenue records will not prove his possession and enjoyment and taking advantage of the close relationship between the parties, he changed the patta in his name and that will not confer any title to the respondent/plaintiff and the father of the respondent/plaintiff was examined as D.W.2, and he has also given evidence that in the oral partition, the suit property was allotted to the share of his son Mr. Thiagarajan, and the respondent/plaintiff was not allotted any share and without considering the evidence of D.W.2, who is competent to speak about the oral partition, the Courts below decreed the suit. The learned counsel further submitted that the Courts below erroneously placed the burden of proof on the appellant and decreed the suit holding that the appellant has not proved that the suit property was allotted to his share in the oral partition, without considering the evidence of D.W.2, the father of the respondent/plaintiff.
6. Mr. P. Valliappan, the learned counsel appearing for the respondent submitted that to prove the possession and enjoyment of the property, the respondent has filed documents from the year 1982 onwards and according to the respondent, the oral partition took place in or about 1980 and from 1982 onwards, he was enjoying the property by paying taxes and patta was also issued in the name of the respondent in the year 1989. Therefore, the revenue records and the patta would prove the respondent''s possession and enjoyment of the suit property for more than 20 years and having regard to the relationship between the parties and the nature of the case advanced by both the parties, the Courts below rightly held that the respondent proved his title and he also proved that the suit property was allotted to him under the oral partition and the same was corroborated by the revenue records. Hence, the concurrent findings of facts need not be interfered with in the Second Appeal.
7.The following substantial question of law arise for consideration in the Second Appeal.
i) Whether the Courts below were right in decreeing the suit, when the plaintiff has not proved that the suit property was allotted to him under the oral partition, on the basis of the revenue records?
8. In this appeal, it is admitted that the suit property and other properties were originally belonged to the family of Thiru. Govidasamy and his sons viz., the plaintiff, Mr. Palanivelu and Mr. Thiagarajan. The appellant purchased the suit property and another property from the plaintiff''s father and brother-Mr. Thiagarajan, under Ex.B1. The appellant is none other than the cousin of the respondent/plaintiff. In this case, both the parties pleaded oral partition and according to the respondent/plaintiff in the said oral partition, the suit properties and two others properties were allotted to him. Eventhough, the respondent/plaintiff did not mention what are the properties allotted to his share and the properties allotted to the other sharers viz., his brothers and father in the oral partition, he has produced the kist receipts to probabilise his case of oral partition, wherein, the suit property was allotted to his share.
9. On the other hand, the appellant has pleaded that in the oral partition that took place in the family of the respondent/plaintiff, his father and brother were allotted eastern portion in S.No. 106/5 of an extent 17 acres, northern portion in S.No. 105/3, and 4 hertz in S.No. 130/14 was allotted to the share of the respondent/plaintiff. As stated supra, both the parties, pleaded oral partition in or about the same time and according to the plaintiff, he was allotted the suit property and two others properties. To prove the same, the respondent/plaintiff marked Ex.A1-patta dated 22.9.1983, wherein, he was stated to be owner of the property in S.Nos.105/3A, 106/5A and 106/4B. The patta pass book was also issued in his favour, as evidenced by Ex.A2. The kist receipts from the year 1982 onwards would in addition probablize the case of the respondent/plaintiff that in the oral partition, the suit property was allotted to him and he was in possession and enjoyment of the same. The appellant also admitted in the statement that the property in S.No. 106/5A and S.No. 105/3A, were allotted to the respondent/plaintiff. The Exs.A1 and A2, also mentions about those properties in the name of the plaintiff. Therefore, when Exs.A1 and A2, viz., the patta and the patta pass book are in the name of the plaintiff and they mention not only the properties in S.Nos.106/5A and 105/3A, but also the suit property, the case of the respondent/plaintiff that the suit property was allotted to him under the oral partition is more probable and was also strengthened by the production of the kist receipts from the year 1982 onwards in the name of the respondent/plaintiff.
10. On the other hand, the appellant did not produce any document to prove possession of the property by his vendors earlier to 2000. The Ex.B1-sale deed and the patta issued in his name, adangal, kist receipts are subsequent to the filing of the suit. Though D.W.2, the father of the respondent/plaintiff has given evidence in support of the appellant, he did not state in his evidence what are the properties that were allotted to the share of the respondent/plaintiff, himself and his other sons and in Ex.B1- sale deed also, it was stated that the properties conveyed under Ex.B1, were allotted to the share of the father and the second item viz., the suit property was allotted to the share of the appellant''s vendor Mr. Thiagarajan and he did not state that the first item of property in Ex.B1, was allotted to his share. Though the revenue records will not confer any title, having regard to the facts of the case, wherein, both the parties admitted that there was an oral partition in the family in or about 20 years earlier and immediately thereafter, the patta was transferred in the name of the respondent/plaintiff and the respondent/plaintiff was continuously paying the kist receipts in respect of the suit property from the year 1980, this aspect would itself prove that in the oral partition, the suit property was allotted to the share of the respondent/plaintiff and the case of the respondent is more probable than the case of the appellant. Hence, both the Courts below rightly held that the respondent/plaintiff has proved his case and decreed the suit and the substantial question of law is answered against the appellant.
11. In the result, the Second Appeal is dismissed confirming the judgment and decree of the Courts below. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
