K.Mylsamy v. K.Ramasamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.09.2016

CORAM

THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU Second Appeal No.87 of 2011 AND MP NO.1 of 2011 K.Mylsamy ... Appellant vs.

K.Ramasamy

...Respondent

Prayer: Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 11.04.2005 made in A.S.No.173 of 2004 on the file of the Principal District Judge, Coimbatore, confirming the judgment and decree dated 28.04.2004 made in O.S.No.279 of 2000 by the III Additional Sub Judge, Coimbatore.

For Appellant : Mr.S.Gunalan For Respondent : M/s.V.S.Usha Rani

J U D G M E N T

This matter is listed before this court today under the caption 'Notice of motion'. Thus, the appeal has not been admitted so far and therefore, this court has to see as to whether any substantial question of law exists in this appeal for hearing the same further on such question of law.

2.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 3.The appellant is the defendant in a suit for partition. The respondent herein is the plaintiff. Both the parties are brothers. 4.The case of the plaintiff is that the suit properties were jointly purchased by the plaintiff and his brother viz., the defendant and they are in joint possession and enjoyment of the same. His further case is that for convenient enjoyment, when it was decided before the panchayat to partition the property among the parties equally, the defendant later refused to execute a registered deed and therefore, it necessitated the plaintiff to file the suit for partition. 5.The suit was resisted by the defendant by contending that the plaintiff has not contributed any money for purchasing the properties and on the other hand, the same was purchased by the defendant out of his own fund. It is his further case that he is in exclusive possession and enjoyment of the suit properties.

6.Both the courts below concurrently found that the plaintiff is the joint owner of the suit properties and that the defendant has not proved his exclusive possession or ownership of the same. The courts below also rejected the plea of the defendant in respect of his contention that there was no contribution from the plaintiff for the purchase of the properties. The factual finding rendered by both the courts below based on appreciation of the respective pleadings of the parties as well as their evidence disclose that such findings do not warrant any interference by this court, more particularly, when such findings rendered do not raise any substantial question of law before this court for entertaining this second appeal.

The defendant has not disputed the purchase of the suit properties jointly in the name of the plaintiff and the defendant. Therefore, it is bounden duty of the defendant to disprove the claim of the plaintiff, which he miserably failed to do so before the courts below. A thorough analysation of the evidence let in by the parties by the courts below revealed that the contention of the defendant is an utter falsehood and on the other hand, the plaintiff being the joint owner, is entitled for partition and separate possession of his half share in the suit properties.

K.RAVICHANDRABAABU,J.

vri find no infirmity. Accordingly, the second appeal fails and the same is dismissed. No costs. The connected miscellaneous petition is also dismissed.

30.09.2016 Index: Yes/No vri To 1.The III Additional Sub Judge, Coimbatore.

2.The Principal District Judge, Coimbatore.

Second Appeal No.87 of 2011