PAVAYAMMAL Vs. DEVANNA GOUNDAR

JUDGEMENT

(1.) THE appeal arises out of O. S. No. 1217 of 1980 on the file of the learned Subordinate Judge of Salem, in which the respondent herein prayed for partition of his one half share in the suit schedule properties and allotment of one such share to him with possession. THE case of the plaintiff-respondent was as follows: By a sale deed dated 13. 3. 1964 the plaint A Schedule property came to be purchased jointly in the names of the plaintiff and the defendant from one Narasiammal and others. Similarly, on 7. 3. 1966 the plaintiff and the defendant jointly purchased the B schedule property from one Sathan Bibi Ammal. From the date of those purchase the plaintiff and the defendant are being in enjoyment of the properties. However, for the sake of convenience, they are separately enjoying portions of the properties by separate cultivation without any division by metes and bounds. By the joint efforts of both parties the house in the A schedule land was constructed seven years ago at a cost of Rs. 15 ,000. Adjoining that house there are two sheds put up by the plaintiff. THE plaintiff is occupying a portion of the house and the two sheds and the remaining portion of the terraced house is occupied by the defendant. After the purchase, both the sharers planted 150 coconut trees in the A schedule property. Two years priorto the suit, they also planted 200 coconut trees. In the year of suit and in the previous year both sharers planted about 300 coconut trees in the B schedule property. THEre are two wells, one in each, in the A and B schedule properties. Both parties spent a sum of Rs. f0 ,000 and dug a new well in the B schedule property. THEre is an oil engine installed in the newly dug well, which was dug at common cost. THEre is an electric motor with pump set of 5 H. P. installed in the A schedule well. Thus, both the parties have been exercising equal rights in the entire A and B schedule lands, together with the well and pump set. Recently, misunderstandings arose between the parties. At the instigation of the sons of the defendant, the defendant and her men are giving lot of pin pricks to the plaintiff and his family members in the enjoyment of the properties by the plaintiff jointly with the defendant. In fact, recently the plaintiff was prevented by the defendant and her men from entering the properties, particularly the suit building which is in the plaintiffs occupation. All mediations failed. Hence the suit.

(2.) IN her written statement, the defendant urged that it is false to state that the plaintiff and the defendant are jointly cultivating the A and B schedule properties and that they are in separate possession and enjoyment only for the sake of convenience without actual division by metes and bounds. As early as in 1969, the plaintiff and the defendant actually divided both the schedule item into two equal shares and they have been separately cultivating their respective portions. This was by means of an oral partition. The defendant was allotted the northern portion while the plaintiff was allotted the southern portion. Before partition, there were only two thatched sheds in the A schedule property, of which one shed went to the share of the defendant in the oral partition. About three years after the said partition, the defendant spent about Rs. 50 ,000 and constructed a pucca house in the place of the thatched shed in her share. The entire money therefor was solely spent by the defendant and the plaintiff has nothing to do with the house, in which the defendant and her sons alone are now living. The plaintiff has absolutely no manner of right or possession either to the terraced house or the thatched house adjoining the same. It is false to say that ten years after the purchase the plaintiff and the defendant jointly planted 150 coconut trees in the A schedule property and again they planted 200 coconut trees about two years prior to suit and again 300 coconut trees in the year prior to the institution of the suit in the B schedule property. The plaintiff alone had planted 300 coconut trees and the defendant had planted 250 coconut trees in their respective portions allotted pursuant to the oral partition. There was no planting at all after the partition.'the A schedule well, there is enough water and an electric motor and pump set has been fixed, and underground pipeline has been laid to take water to the B schedule property. There is not much water in the well in the B schedule property and that well is not practically being used by the sharers. So, only from the well in the A Schedule property water is taken by means of the underground pipeline. Both the plaintiff and the defendant have dug big pits like mini wells in their respective portions. The underground pipeline water is allowed to stagnate in the mini wells by the respective parties and water is separately pumped out by the respective parties to their respective portions with the aid of oil engine separately installed. The plaintiff had installed an oil engine a year prior to the suit while the defendant had installed an oil engine in her portion two years prior to the suit. The well in the A schedule property and the electric motor and pump-set therein are common to both parties. It is false to say that the well in the B schedule property was dug by the plaintiff and the defendant jointly spending Rs. 10 ,00 0. The new well in the B schedule property was dug by the defendant alone with her sole funds and the plaintiff has absolutely nothing to do with it.

(3.) K. Doraiswami, learned Counsel for the appellant, urges that the Court below had completely misdirected itself with reference to the scope of the defence. It is true that when properties had come to be jointly purchased under Exhibits A. 1 and A. 2, it will continue to be joint unless it is clearly established that there was a partition by metes and bounds. It is also true that the person who pleads a prior oral partition must prove the same. But, that is not the end of the matter. It is incumbent upon the plaintiff to explain as to how the parties have been enjoying the separate shares separately. Further, this is a case in which the evidence of P. W. I had not been adverted to at all. He categorically admits that he does not know the maistry who was in charge of the construction of the house. It is not clear as to how much he had paid to the husband of the defendant, though he would say that as and when money was demanded he used to pay. The house-tax receipts standing in the names of the defendant's sons have been produced. Not a single documentary evidence has been filed on behalf of the plaintiff to show that there was any joint enjoyment as alleged by him. Excepting the singular fact that the patt a continued to be joint, there is nothing else to show, including the payment of kist , that there was any jointness. On the contrary it is , the defendants, by producing exhibits B. 13 to B. 16, have established separate enjoyment evidenced by payment of kist for the portion in the defendant's occupation. No such record is produced on the side of the plaintiff.