KARUPPANNA THEVAR Vs. RAJAGOPALA THEVAR

JUDGEMENT

(1.) THE first defendant is the appellant. The suit was filed by respondents 1 to 4 for partition and separate possession of their 4/5th share in the plaint schedule properties which consisted of two items. The first item is a pucca house bearing door No. 3/135 and comprised in T. S. 10/2191 of Kattur village in Coimbatore town. The second item is given as vacant site measuring 51 cents forming part of T. S. 1771/1 -A and situate in Pankaja Mills Road, Coimbatore. The appellant and respondents 1 to 4 are brothers, the appellant being the eldest. The respondents in their plaint stated that they and the first defendant have been living for a considerable time separately each following his own avocation and calling but they have not divided the joint family properties by metes and bounds. Item 1 in the schedule is the ancestral family house in which the plaintiffs are living separately with their own families in different portions. The first defendant has also retained for his own use a portion of the said item. Item 2 is a vacant site measuring 51 cents situate in Pankaja Mills Road. The first defendant appears to have put up some tiled flimsy structures in some portion of the site. He is residing with his family in a structure in a portion of the site and has rented out the other portions without reference to the plaintiffs and without any right or authority to do so. The plaintiffs claim that they are entitled to vacant possession after removal of the superstructure. On these allegations the plaintiffs sought a decree for partition of their 4/5th share in both the items.

(2.) IN the written statement filed by the appellant herein he stated that in an oral partition sometime 30 years ago before 1964, the first defendant became separated and Item 1 properties were allotted to the plaintiffs and Item 2 which was an unproductive vacant land with number of pits was allotted to him for his share and that the first defendant was driven out of the family house and thereafter the first defendant had nothing to do with the family or its properties or the income therefrom. He also pleaded that by his own exertions by doing cooley work and a small milk vending business he earned some income and with that he put up the buildings on Item 2 which was allotted to his share in the said oral partition. The cost of these constructions was stated in the written statement as Rupees 20,000. The defendant also denied that he retained any portion in the first item for his own use and characterised the assertion in the plaint in regard thereto as a deliberate falsehood and asserted that the plaintiffs alone are in possession and enjoyment of the entire house. The second defendant remained absent and was set ex parte.

(3.) IN this appeal, the learned counsel for the appellant submitted that the admitted long course of conduct of the parties clearly showed that there should have been an oral partition as contended for by the appellant and that only in assertion of his title as per the oral partition, the appellant could have built all the superstructures. As already stated, the superstructures were built by the appellant and this was admitted by the plaintiffs respondents even in the plaint. In the oral evidence of P. W. 1 he had stated that the appellant had been in possession of Item 2 for more than 20 years, that at that time when he came to originally occupy the site there was no building in Item 2 and that later on the first defendant constructed these superstructures from his own income and not from the joint family or other income. Again, the appellant in his written statement had stated that the construction had cost him about Rs. 20,000. A Commissioner was appointed by the lower Court to inspect the property and report as to the nature of the superstructures and their value and he has submitted a report in which he had valued the superstructures at Rupees 17,075. The investment of such a large amount over item 2 by way of construction of buildings in our view lead to the inference that it should have been only on the basis of a claim of ownership to the property which could be only on the basis of the oral partition pleaded by the first defendant. This inference is fortified by the fact that though the plaintiffs were aware of the construction even 20 years before, admittedly they did not make any written objection or was there any written demand for partition. Of course, the first plaintiff would say in his evidence that he orally objected and was orally demanding partition for more than 20 years but the first defendant would not accede to that request. This is hardly believable. If in spite of the objection of the plaintiffs the first defendant was going on constructing buildings and refusing to accede to the request for partition, the plaintiffs would not have kept quiet for all these 20 years. In addition to this we have the house tax receipts produced by the first defendant which are marked as Exs. B -7, B -8 and B -10. These receipts refer to the building in respect of which the tax is as door Nos. 4/41 to 44. For almost the same period the plaintiffs produced Exs. A -7 to A -21 which are purported to be tax receipts issued by the Coimbatore Municipality. The property in respect of which that tax was paid is stated in those receipts as door No. 4 Pankaja Mills Road. It is not clear whether door No. 4 relates to the suit Item 2. But we have the admission that the tax receipts Exs. B -7, B -8 and B -10 relate to the superstructure on Item 2. But there is no clear evidence to show that Exs. A -7 to A -21 relate either to the vacant site in Item 2 or to any other property. If they relate to the vacant site on Item 2 and if that vacant site is a joint family property as contended by the plaintiffs, then one would have expected that the tax receipts should be either in the name of all the persons or the tax should have been paid by all of them. It is not the case of the plaintiffs that with reference to Item 2 the first defendant had at any time either contributed to the plaintiff for payment of the tax evidenced by Exs. A -7 to A -21 or that they paid the amount including the share of the first defendant. We are, therefore, unable to place any reliance on these Exs. A -7 to A -21. That leaves us with two other sets of evidence in this case. One set of evidence is the mortgage documents executed by the fourth plaintiff and the third plaintiff. Ex. A -1 dated 29 -1 -1954 was executed by the fourth plaintiff in favour of one Rangammal and this related to the 5th share of the fourth plaintiff in Item 1. Since this document does not relate to Item 2, this does not in any way help the plaintiffs to prove that there was no partition. Ex. A -2 is a mortgage deed dated 24 -10 -1958 executed by the third plaintiff in favour of one Ayyammal. The property mortgaged is stated to be the one -fifth share of the third plaintiff in Items 1 and 2. The curious feature in this case is that neither the third plaintiff nor the mortgage had been produced.