SULOCHANAMMAL Vs. S RAMACHANDRAN

JUDGEMENT

(1.) (PRAYER: Second Appeal against the Judgment and decree of the Sub court, Tiruvallur, passed in A.S.No.91 of 1989, dated 30.08.1993 reversing the judgment and decree of the District Munsif Court, Ponneri in O.S.NO.277 of 1984, dated 10.08.1989.) The defendants in the suit are the appellants. The plaintiff filed the suit for injunction from enjoyment of house site measuring 1 cent being the housing plot and the backyard of 0.02 and three fourth cents adjacent on the Southern side.

(2.) THE case of the plaintiff was that a total extent of 15 cents out of 29.88 acres comprised in gramanatham Survey No. 252/1 in Nanoor Village was divided among four brothers each having one cent for housing purpose and backyard to the extent of 0.02 3/4 cents. THE first defendant, is stated to have purchased the site of one of the brothers Subramaniya Mudaliar under a sale deed dated 01.10.1966 marked as Ex.A.3. It is the case of the plaintiff that among the four brothers who have divided except the first defendant all other sharers including Govinda Mudaliar, Varadhappa Mudaliar and Abrahiyammal who purchased the share of Natesa Mudaliar have orally exchange their backyard sites based on which the first backyard portion on the Eastern side was taken by Abrahiyammal the next by Varadhappa Mudaliar and thereafter on the West by Govinda Mudaliar and accordingly they have been enjoying their respective shares.

(3.) THE contention raised on behalf of the appellants who are the defendants in the suit is that the oral partition stated to have been effected between the brothers in respect of backyard portion by which there was a rearrangement of various portions of backyard among the four brothers cannot be valid in law. Even though the Trial Court has dismissed the suit, the First Appellate Court while appreciating the contents of various documents relied upon by both the parties which are sale deeds in respect of four portions along with four backyards, the First Appellate Court has come a conclusion factually that out of the entire extent of A, B, C, D which included the house site as well as the backyard, the plaintiff who claims under Ex.A.1 sale deed has got the suit property allotted to him. THE First Appellate Court has also appreciated Ex.B.2 based, which is a Xerox copy of a letter on which the defendants have made a claim of a passage and considered that unless it is proved that the original documents are not available, the Xerox copy cannot be taken into consideration for the purpose of deciding the issue and also having considered the case of the defendants that there was an authorization to use Xerox copy, since many other owners are involved but at the same time there is nothing in writing in the said document to show that the defendants are entitled to have the Xerox copy by way of an endorsement. THE First Appellate court has also found that when it is the case of the defendants that original document of Ex.B.2 which was the basis of their claim was stated to be with the plaintiff, no step has been taken for the purpose of procuring the document from the plaintiff and in such circumstances, the First Appellate Court has correctly come to a conclusion that Ex.B.2 Xerox copy which was solely relied upon by the defendants cannot be taken into consideration.