MADIAMMAL Vs. GLORY CHANDRAKANTHA

JUDGEMENT

(1.) THE plaintiff, who succeeded in the trial Court but lost in the lower appellate court, is the appellant. She filed the suit for declaration of her title to the suit for declaration of her title to the suit property which is one acre of land with a terraced building in S. No. 153/6 of Jegathala Village in Coonoor Taluk for a permanent injunction restraining the respondent from interfering with her possession of the property. Her case that the suit property was purchased for rs. 8,000/- under Exhibit B-5, dated 8-12-1944 by her brother Mutha Gowder (P. W. 1) and one Boja Gowder, the father of Sevanan (D. W. 1) who were partners of 'mutha Gowder and Company'. There was a partition subsequent to the death of Boja Gowder in the beginning of 1957 after dissolution of the partnership had taken place prior to 1957 between P. W. 1 and D. W. 1 on 1-121957. According the appellant. Exhibit A-1 dated 1-12-1957, which is unregistered is a partition list singed by P. W. 1 and D. W. 1 as well as the panchayatdars at whose instance the assets of the partnership were divided. Subsequently Mutha Gowder (P. W. 1) gifted the suit property to the appellant under Ex. A-4 dated 15-12-1965 and she was in possession and enjoyment of the property since that date. But the respondent (D. W. 4) had taken the sale deed, Exhibit B-8, dated D. W. 4 attempted to interfere with the appellant's possession of the suit property. The appellant claimed to have leased the cultivable land and to be living in the downstairs portion of the building She alleged that the suit property is comprised in patta No. 460 prayed for declaration and injunction.

(2.) THE respondent denied that the suit property was purchased by the partnership Mutha Gowder as alleged in the plaint and contended that the property was purchased by P. W. 1 and Boja Gowder under Ex. B-5 in their individual capacity. She put the appellant to proof of the existence of the partnership and its dissolution, as well as the allotment of the suit property to mutha Gowder and contended that Mutha Gowder was entitled only to a moiety in the suit property and had no right to deal with it in its entirety. She claimed to have purchased Boja Gowder's half share in the property under Ex. B-8 and to have taken possession of her share on the south and to be exercising acts of cultivation and she contended that the appellant is only a co-owner who could sue only for partition and not for injunction.

(3.) THE purchase of the suit property under Ex. B-5 by Mutha Gowder (P. W. 1)and Boja Gowder and the execution of Ex. A-1 by P. W. 1 and Boja Gowder's eldest son (D. W. 1) were admitted before the learned Subordinate Judge who tried the suit. The respondent (D. W. 4) objected to the admission of Ex. A-1 in evidence for want of stamp and registration. But the learned Subordinate judge, however, admitted it in evidence and considered only the question of its admissibility for want of registration. He found that P. W. 1 and D. W. 1 had not executed any arbitration muchalika in favour of their friends who acted as panchayatdars and that Ex. A-1 was neither an award nor a partition deed, but only a memorandum or list of a previously accomplished partition which had been acted upon and was admissible in evidence and that the suit property fell to the share of P. W. 1 in that partition and the appellant became the owner of the suit property by virtue of the gift under Ex. A-4. He also found that the appellant was in possession and decreed the suit as prayed for with costs.