CHINNASWAMI NAIDU Vs. RENGARAJALU NAIDU

JUDGEMENT

(1.) 1.Defendant in O.S.No.88 of 1978, on the file of District Munsif, Kallakurichi, is the appellant. The respondent herein as plaintiff filed the suit for partition and separate possession of plaint schedule two items. In this appeal we are only concerned with item No. 1 of the plaint schedule.

(2.) THE plaintiff and defendant are brothers, and in a partition deed evidenced by Ex.A-1, the plaintiff alleges that plaint item No.1 was allotted to him exclusively. THE defendant who is his elder brother trespassed into the property and began to appropriate the income. THErefore, the plaintiff issued a notice under Ex.A-2, dated 16.2.1973, for which the appellant sent a reply on 1.3.1973, alleging that plaint item No.1 is allotted towards his share, and he is enjoying the same as its owner. It is further stated in the plaint that plaint item No.1 seems to have allotted and included in both the schedule of plaintiff and defendant, and therefore, he will be satisfied, if he is allotted half share over the said item.

(3.) FROM the above pleadings, it is clear that both parties admit that there is a mistake in the allotment FROM the respective pleadings it is clear that the intention of the parties was to allot this item either to the plaintiff or the defendant. There is no intention at all to include this property in both the schedules of plaintiff and defendant. It is also clear from the allotment in the partition that the properties allotted to the parties to the partition deed were described separately and separate schedules were also written, and from the above circumstances, it is further clear that it was never intended by the parties that plaint item No.1 must be divided equally. If that is the admitted case of both the parties, merely because it is included in both the schedules, can the decree of the lower appellate court be sustained, giving equal share in plaint item No.1. According to me, the approach of the lower appellate court is not correct. If the intention of the parties was to allow plaint item No.1 either to plaintiff or to defendant and when that case was admitted by both sides, the court cannot grant equal share to the brothers. In such cases, the plaintiff will have to prove that the said item was intended to be allotted towards his share, In that attempt, the plaintiff has miserably failed.