Arjun Gounder v. Swaminathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH SA.No.472 of 2015 and MP No.1 of 2015
1. Arjun Gounder
2. Paranthaman
3. Ramu
4. K.Govindan ...
Appellants/Defendants Vs.
Swaminathan ...
Respondent/Plaintiff Prayer: Second Appeal filed under section 100 of the Code of Civil Procedure to set aside the decree dated 12.09.2014 made in A.S.No.79 of 2011 on the file of Sub ordinate Judge, Gudiyattam, against the judgement and decree dated 26.09.2011 made in O.S.No.161 of 2008 on the file of the District Munsif Court, Gudiyattam,Vellore District.
For Appellants :
Mr.D.Pradeepkumar For Respondent :
Mr.K.Govi Ganesan for Mr.C.Vinoth Kumar
JUDGMENT
The defendants are the appellants in this second appeal. 2.
The respondent / plaintiff filed a suit seeking for the relief of declaration of title with respect to Item Nos.2 and 3 of the suit properties or in the alternative for the relief of partition and for allotment of 1⁄4 share in Item Nos.2 and 3 of the suit properties.
3.
The case of the plaintiff is that the 1st defendant is his father and the 2nd and 3rd defendant are his brother and sister and the 4th defendant is his brother-in-law. According to the plaintiff, item No.1 of the suit property belonged to his grand father and this property was bequeathed in favour of the plaintiff and the 2nd defendant. On the demise of the grand
father, the Will came into force and therefore, the plaintiff is claiming for 1⁄2 share in Item No.1 of the suit property. 4.
The further case of the plaintiff is that he was working in CISF and he retired from service in the year 2003. According to him, he was sending money to the 1st defendant regularly and the 1st defendant had purchased item 2 of the suit property in his name through six sale deeds. Similarly, the money sent by the plaintiff was also utilized by the 2nd defendant and he had purchased the property mentioned in Item 3 of the suit property in his name. The plaintiff took a stand that the earnings from the 1st item of the suit property was also utilized while purchasing the properties mentioned in Item 2 and 3 of the suit properties.
5.
The grievance of the plaintiff is that defendants 1 to 3 were acting against the interest of the plaintiff and were not inclined to divide the properties. Left with no other alternative, the suit was filed seeking for the reliefs mentioned supra.
6.
The 1st defendant filed a written statement and took a stand that item 2 and 3 of the suit properties was not purchased from the earnings of the plaintiff. He took a stand that the 2nd item of the suit property was purchased from his own earnings and it is the exclusive property of the 1st defendant. Similarly, item 3 of the suit property was purchased exclusively out of the earnings of the 2nd defendant. Therefore, the 1st defendant completely denied the right of the plaintiff in item 2 and 3 of the suit properties and took a stand that the plaintiff is not entitled for any share in the suit property. Accordingly, the 1st defendant sought for the dismissal of the suit. 7.
The Trial Court on considering the facts and circumstances of the case and after analyzing the oral and documentary evidence decreed the suit through judgment and decree dated 26.09.2011 and granted the relief of partition and allotment of 1⁄4 share with respect to all the properties in Item 2 except Serial Nos.1, 3 and 4 and similar relief was granted for item 3 of the suit property also. The Trial Court also granted the consequential relief of permanent injunction restraining the 1st defendant from dealing with the properties for which the relief of partition was granted. The suit was dismissed with respect to the relief of declaration of title. 8.
Aggrieved by the judgement of the Trial Court, the defendants filed an appeal before the Sub Court, Vellore in A.S.No.79 of 2011. The Lower Appellate Court through judgment and decree dated 12.09.2014 modified the decree passed by the Trial Court and granted the relief of partition and allotment of
1⁄4 share for all the properties in item 2 and item 3 of the suit properties. Aggrieved by the same, the defendants have filed this second appeal.
9.
When the second appeal was admitted, the following substantial questions of law were framed by this Court :- a) Whether both the Courts below erred in finding that the 'B' and 'C' schedule properties which stood in the names of the 1st and 2nd defendants was acquired through the income earned from the 'A' schedule property, without there being any evidence to substantiate this stand taken by the plaintiffs? b) Whether the lower appellate Court had assigned cogent reasons for modifying the findings of the trial Court and re-assigning the shares in favour of the parties, as mandated under Order 41 Rule 31 (c) of the Code of Civil Procedure?
c) Whether the finding of both the Courts below can be termed as perverse due to improper appreciation of the evidence available on record and for shifting the burden of proof on the defendant without the plaintiffs being able to discharge their burden?
9.
Heard the learned counsel for the Appellants and the learned counsel for the respondent and this Court has also carefully perused the materials available on record and the findings rendered by both the Courts below.
10.
It is an admitted case that item 2 of the suit property stood in the name of the 1st defendant and item 3 of the suit property stood in the name of the 2nd defendant. The specific case of the plaintiff is that item 2 and 3 of the suit properties were purchased out of the money sent by him and from the revenue yielded by first item of the suit property. 11.
Both the Courts categorically held that the plaintiff has not proved the fact that item 2 and 3 of the suit properties were purchased out of the money sent by the plaintiff. There is also no proof that item 2 and 3 of the suit properties was purchased from the excess revenue available from the first item of the suit property. The plaintiff did not discharge his burden and hence, item 2 and 3 of the suit properties can only be held to be the exclusive properties of defendants 1 and 2.
12.
Very curiously, the Courts below went on a tangent and shifted the burden on the side of the defendants and expected the defendants to prove that item 2 and 3 of the suit properties were purchased from their income. This procedure
adopted by both the Courts below is against the principles of law. That apart, the lower appellate Court went into irrelevant facts and rendered a finding as if items 2 and 3 of the property were purchased from the income derived from the 1st item of the suit property and this finding is not based on any evidence and it is based on surmises.
13.
Both the Courts below erred in finding that item 2 and 3 of the suit properties were purchased from the income derived from the 1st item of the suit property. The 1st substantial question of law is answered accordingly in favour of the appellants.
14.
The relief that was granted by both the Courts below in favour of the plaintiff based on surmises and improper appreciation of evidence and hence, those findings must be held to be perverse. The 2nd and 3rd substantial questions of law are accordingly answered in favour of the appellants. 15.
In view of the above discussion, this Court has no hesitation to interfere with the judgment and decree passed by both the Courts below and the same is hereby set-aside. Consequently, the suit filed by the respondent is dismissed. 16.
In the result, this second appeal is allowed. Considering the facts and circumstances of the case, there shall be no order as to costs.
Sd/- Assistant Registrar(CS-IV) //True Copy// Sub Assistant Registrar rka To
1. The Sub ordinate Judge, Gudiyattam Vellore District.
2. The District Munsif , Gudiyattam, Vellore District Copy To:- The Section Officer VR Section, High Court Madras.
+1cc to Mr.T.Dhanyakumar, Advocate, S.R.No.21969 +1cc to Mr.K.Govi Ganesan, Advocate, S.R.No.21987 +1cc to Mr.G.Vinodh Kumar, Advocate, S.R.No.22061 SA.No.472 of 2015 NRJK(CO) SB(18/05/2022)