KRISHNAMURTHY CHETTIAR Vs. THANGARAJU PADAYATCHI

JUDGEMENT

(1.) THIS second appeal has been directed against the judgment an decree, dated 29.2.1988 passed in A.S.No.104 of 1986 on the file of the Subordinate Judge, Ariyalur reversing the judgment and decree of the Court of the District Munsif, Perambalur dated 14.7.1986 made in O.S.No.1809 of 1981.

(2.) THE short facts are: THE husband of the vendor of the respondent/ plaintiff and the appellants/defendants are brothers. THE vendor of the respondent is one Geetha, who is the wife of Kabeerdos. Geetha sold the suit property to the respondent/plaintiff claiming that a partition took place even during the lifetime of her husband and after the death of her husband, she was enjoying the properties. THE respondent/plaintiff purchased suit property under Ex.A-2, dated 25.7.1981. THE respondent/plaintiff claimed after his purchase, he was enjoying the suit property as house by paying the house tax, but during the year 1981, the appellant/defendant attempted to trespass into the suit property, which compelled him to file the suit for a declaration of his title and for a permanent injunction.

(3.) THE point: THE learned counsel for the appellants/defendants strenuously contended the First Appellate Judge had committed a grave error of law in upsetting the judgment of the trial court. It was argued that the recitals in the document, Ex.A-1 or the evidence of the plaintiff P.W.1 and his vendor, P.W.2 does not show that the division of the properties was effected among Duraisamy Chettiar and his sons sometime prior to the date of the document and that Ex.A-1 had been written to record the division of properties already taken place among them. A reading of the recitals in the document, Ex.A-1 would show that he declared an interest in immovable property mentioned that in on the very date it was written, namely, on 7.4.1979 and not earlier. In short, it was submitted that the document, Ex.A-1, the execution of which is admitted by both the parties is not a partition list, but is an partition deed, which is compulsorily registerable, as the value of the properties allotted to each of the sharers exceeds more than Rs.100. THE learned First Appellate Judge has taken only one sentence from the notice, Ex.A-7 issued by the defendant for reversing the judgment and decree of the trial court without going to the root of the matter, namely, without ascertaining whether division between the sharers took place earlier to the document, Ex.A-1 and it had been written only to make a record of the partition already effected between the sharers and, therefore, it is perverse.