Kolandasamy Gounder vs Thirumalai Gounder and Sengottian

K. Mohan Ram, J.—The plaintiff in O.S. No. 272 of 1990 on the file of the Second Additional Sub-Court, Erode being aggrieved by the judgment and decree dated 20.01.1992 passed therein has filed the above appeal. For the sake of convenience, the parties are referred to as per their ranking in the suit.

The brief facts of the case as set out in the plaint are as follows:

The second defendant is the son of the first defendant. The first defendant''s brother is Muthttsamy Gounder and his son is Kailasam. The plaintiff is the purchaser of an extent of 1.45 1/2 acres from Muthusamy and his son Kailasam. The suit properties are comprised in one field and the same is called as Chinnakarumanda Kadu. Originally the said suit property belonged to the family of the defendants, the said Muthusamy and his son Kailasam. Muthusamy and his son were entitled to an half share therein and the other half share belonged to the defendants. There was no partition by metes and bounds between them. The properties were enjoyed commonly, but for convenience sake the parties had enjoyed the same in two plots namely the Eastern plot and the Western plot. The parties were exchanging the plots once in in three years.

On 29.01.1974, the plaintiff purchased half share belonging to Muthusamy Gounder and his son Kailasam for valuable consideration. The plaintiff is in possession and enjoyment of common share in the suit properties. There was re-survey of the suit properties and other properties in the village. In the re-survey, the suit properties were allotted re-survey numbers. Even after the re-survey the suit properties were held as common properties belonging to the plaintiff and the defendants. As there was trouble in the common enjoyment of the properties the plaintiff demanded partition. But the defendants were not agreeable. The plaintiff issued a notice dated 20.03.1989 seeking partition. A reply was sent by the defendants with false averments stating that there was an oral partition of the suit properties between them and Muthusamy Gounder and his son Kailasam. The claim of oral partition by the defendants is not admitted by the plaintiff.

Since the re-survey disclosed a large extent, the same would enure for the benefit of both the sharers and not to a particular sharer. The defendants are not entitled to claim more than half share, hence the suit. The Trial Court framed the following issues:

i) Whether there is any proper cause of action for the suit?

ii) Whether the plaintiff is entitled to half share in the suit properly as claimed by him?

iii) To what relief the plaintiff is entitled to?

The two additional issues were framed which reads as follows:

i) Whether the oral partition pleaded by the defendants is true?

ii) Whether the plaintiff is entitled to more than 1.45 1/2 acres in the suit properties?

During Trial, the plaintiff got himself examined as P.W. 1, his vendor Muthusamy Gounder was examined as P.W.2 and Exs.A-1 to A-19 were marked on the side of the plaintiff. The first defendant got himself examined as D.W.1 and three other witnesses were examined as D.Ws.2 to 4. Exs.B-1 to B-8 were marked on the side of the defendants. A Commissioner was appointed and his report and plan were marked as Exs.C-1 and C-2 respectively. On an elaborate consideration of the oral and documentary evidence adduced in the case, the Trial Court rejected the case of the plaintiff and the suit was dismissed. Aggrieved by that, the plaintiff has filed the above appeal.

I heard, Mr. A.K. Kumarasamy, learned counsel appearing for the appellant and Mr. P. Senthilkumar, learned counsel appearing for the respondents.

The learned counsel for the appellant submitted that there was no oral partition between the vendors of the plaintiff and the defendants and the oral partition pleaded by the defendants has not been established by acceptable evidence. The Trial Court has not properly considered the oral and documentary evidence available on record. The recitals in Ex.A-1 will show that the plaintiff had purchased only an undivided share, though the extent is mentioned as 1.45 1/2 acres. The learned counsel further submitted that Exs.A-9 to A-12, Adangal extract will show that the suit properties stand jointly in the name of the parties and joint patta has been issued which will show that there was no partition as claimed by the defendants. Though, the vendors of the plaintiff and the defendants have sold independently different properties under different documents, as far as the suit property is concerned there was no partition. He further submitted that in Ex.B-1, reply notice sent by the defendants, it is mentioned that the oral partition took place in the Tamil year "Vibava Varudam". Then they sent Ex.B-3, subsequently clarifying that by mistake the Tamil Year was mentioned as "Vibava Varudam" instead of "Virodhi Kirudu". For the Tamil Year Virodhi Kirudu, the corresponding English year is 1960. But D.W.1, the first defendant when cross examined was unable to speak about the month and year in which the alleged oral partition took place. The learned counsel also submitted that though a specific extent is mentioned in Ex.A-1, since what has been purchased by the plaintiff was only an undivided share and the subsequent resurvey shows that there was larger extent, in the larger extent, the plaintiff will be entitled to half share as boundaries will prevail over the extent.

The learned counsel for the appellant submitted that P.W.2 has stated that there was no partition between himself, defendants and their father. Even after the death of his father, there was no partition between him and the first defendant. The claim of oral partition by the first defendant is not correct. The learned counsel also drew my attention to the evidence of D.W. 1, wherein he has stated that the entire extent of 3.16 acres was not divided equally. The vendors of the plaintiff were allotted 1.45 1/2 acres and an extent of 1.70 1/2 acre was allotted to his share, as there were some rocky portions in the area allotted to him. From this the learned counsel submitted that there was no partition by metes and bounds. The learned counsel further submitted that though, D.W. 1 claimed that there was partition between the first defendant and the vendor of the plaintiff, 16 years back, he was unable to state as to the extent allotted to the respective parties. The learned counsel referred to the evidence of D.W.3, who has admitted in the cross examination that he does not know personally as to whether they had partitioned the properties. The learned counsel also submitted that D.W.4 had admitted that he was not present when the first defendant and his brother partitioned the properties. On these submissions, the learned counsel prays for allowing the appeal.

The learned counsel for the appellant relied upon a judgment of the Court, reported in 1984 (II) M.L.J. 307 = (1984) 97 L.W. 365 (Dina Malar Vs. Tiruchirapalli Municipality) for the proposition that boundaries alone will prevail over the extent mentioned in the document. In this case it is held that in case of doubtful or varying extents in documents of title relating to the property, boundaries should be preferred to the extent. In the instant case there is no doubtful or varying extents in the documents of title relating to the property. The said judgment is rendered considering the recitals in the document relied upon in that case, which recitals are totally different from the recitals in Ex.A-1 marked in this case. This judgment is not of any help to the appellants. The learned counsel also relied upon a judgment reported in 1978 (2) M.L.J. 620 (Church of S.I.T.A. Vs. Raja Ambrose). In the said judgment, it is held that the subject matter of the grant would depend on the intention of the parties as expressed in the relative conveyance deed. I have set out above in detail while considering Ex.A-1 marked in this case that the plaintiff in this case, intended to purchase only 1.45-1/2 acres and he has paid the sale consideration only for that extent and hence the above judgment relied upon by the appellant will not further the case of the appellant. The learned counsel relied upon the judgment reported in 1943 (II) M.L.J. 622 = (1943) 56 L.W. 608 (Seela Bodi Naicker Vs. Kama Raja Pandiya Naicker). In my considered view, the facts of that case are totally different. In that case, the description by name and the boundaries was found to be ambiguous and nearly fifty years after the deed a question arose between the representatives of the original parties whether a hill and forest passed to the grantee; and in that context the true principles of construction to be applied was laid down by the Honourable Division Bench. The facts are totally different in the case on hand. In the said judgment relied upon by the learned counsel for the appellant, it is stated that each case depends on its peculiar facts. There is no dispute regarding the principle that boundaries will prevail over the extent mentioned in the document. But the point is under what circumstances the principle has to be applied. As discussed by me above, there is no ambiguity in Ex.A-1 marked in this case and hence the contention of the learned counsel for the appellant that boundaries will prevail over the extent mentioned in Ex.A-1 is not acceptable.

The learned counsel appearing for the respondents submitted that, the fact that the vendors of the plaintiff and the defendants were independently selling their respective shares to different parties itself will show that there was a partition among them. Even after partition the parties may not take steps for mutation of their names in the revenue records and the mere fact that there was no mutation of names in the revenue records will not lead to the conclusion that there was no partition. The plaintiff purchased the property in the year 1974 and only after coming to know that in the re-survey it was found that the area in the occupation of the defendants was more than 1.45 1/2 acres, the plaintiff has filed the suit in the year 1990. Only when there is a doubt regarding the extent sold the principle that boundaries will prevail over the extent will apply and in this case no doubt whatsoever has arisen as the recitals in Exs.A-1 are very clear and the plaintiff intended to purchase and what he paid for is only for 1.45 1/2 acres and as such the plaintiff cannot claim more than that extent. He further submitted that the Trial Court has elaborately considered all the evidence on record and has recorded a correct finding that there was an oral partition between the vendors of the plaintiff and the defendants and as such there is no reason to interfere with the judgment of the Trial Court.

P.W.2 in his evidence has admitted that because there was quarrel between him and his brother Muthusamy Gounder, he and his brother entered into a partition under Ex.A-5. Further, he admitted that all the survey numbers were divided approximately into two halves and they were enjoying their respective shares, they are having separate cooking and they are maintaining separate accounts. He had further admitted that he and his brother had sold the lands to third parties and have divided the sale proceeds. P.W.2 has also admitted that in Ex.B-5, he had sold the land called "Papathikadu" to the first defendant mentioning clear boundaries. He had also admitted that he had sold the land called Parayankadu to Rakkiyanna Gounder under Ex.B-6 and in Ex.B-6, clear boundaries have been recited. In Ex.B-6, it is specifically mentioned that the suit property conveyed under Ex.B-6 lies on the east, north and south of the first defendant, Thirumalai Gounder''s property. The above said admission of P.W.2 will go a long way to show that there was a partition between P.W.2 and his brother, the first defendant. Ex.A-14 is a chitta extract and in Ex.B-14, the properties are shown as belonging to Thirumalai Gounder, Muthusamy Gounder, Marappa Gounder''s wife Rasammal, Nachimuthu Gounder''s wife Pavayee, Thirumalai Gounder''s son, Sengottian Gounder and Kulanthaisamy Gounder. From this alone, we cannot say that there was no partition between the parties. It is quite common among the villagers to remain quite without seeking mutation of names in the revenue records even after actual partition in the family. Hence from Ex.A-14, we cannot come to a definite conclusion that there was no partition. The plaintiff has claimed that under Exs.A-15 to A-19, he was paying his Kist separately, but he has also admitted that there was no document to show payment of Kist jointly.

The plaintiff has also admitted that the first defendant and Muthusamy Gounder had sold the properties independently mentioning clear boundaries for the properties sold. This is corroborated by P.W.2 also. P.W.2 has admitted that the suit property was divided and he was enjoying the Eastern portion and the first defendant was enjoying the Western portion. The above said evidence of P.Ws. 1 and 2 will lend support to the claim of the defendants that there was a oral partition between P.W.2 and the first defendant. The above said evidence of P.W.2 will falsify his claim in chief examination that there was no partition between him and the first defendant. There is no reason to disbelieve the evidence of D.W.1 when he claims that he was allotted with 1.70 1/2 acres and his brother was allotted with 1.45 1/2 acres and larger area was allotted to him, because rocky portions were there in the share allotted to him. To disbelieve this evidence of P.W.1, there is no contra evidence. Simply because, D.W.2 was unable to state as to the actual extent allotted to the first defendant and P.W.2, we cannot come to the conclusion that there was no oral partition. Since, D.W.3 has admitted that he was not personally aware of the partition between P.W.2 and the first defendant his evidence will not help the case of the plaintiff. Likewise, the evidence of D.W.4 will not help the plaintiff.

As discussed above, the evidence on record clearly goes to show that there was oral partition between P.W.2 and his brother the first defendant. Admittedly, the plaintiff had purchased the property from P.W.2 under Ex.A.1 in 1974 and if really there was no oral partition between P.W.2 and the first defendant, the plaintiff would have filed the suit for partition immediately thereafter. But he had not done so. But he had filed the suit only in 1990, after coming to know that in the re-survey it was found that the first defendant''s share is more than 1.45 1/2 acres. There is absolutely no justification for the plaintiff to seek partition nearly after 16 years of his purchase. A reading of Ex.A-1 sale deed shows that what he has purchased is only 1.45 1/2 acre, and what he intended to purchase was also the same extent. The consideration paid by him was also only for 1.45 1/2 acres. Having purchased the said extent alone the plaintiff is not entitled to claim more than that simply because the land in the possession of the first defendant was found to be more than 1.45 1/2 acres in the re-survey by taking advantage of the recital in Ex.A-1.

In the judgment reported in 1997 Law Weekly 365 which the Trial Court has relied upon, it is clearly laid down that,

in case of doubtful or varying extents in the documents of title relating to the property boundaries should be preferred to the extent. Only in the absence of definite material to show the actual extent intended to be sold the boundaries should out-weigh the doubtful extent mentioned in the document. If the recitals in the document and the circumstances of the case shows that a lesser extent only was conveyed than the area covered by boundaries and there is clear evidence as to the intention of the parties with reference to the extent conveyed then the extent prevail over the boundaries.

As pointed out by me above there is absolutely no doubt regarding the extent purchased under Ex.A-1 since clear extent is mentioned in the document and there is clear evidence as to the intention of the parties with reference to the extent conveyed and hence the submission of the learned counsel for the appellant in this respect is unacceptable. The Trial Court has considered extensively the oral and documentary evidence on record and has recorded a correct finding that there was oral partition between P.W.2, the vendor of the plaintiff and the first defendant and there is absolutely no doubt regarding the extent conveyed under Ex. A-1 and has given convincing reasons for recording such findings. No other conclusion is possible. Therefore, I see no reason to interfere with the findings of the Trial Court. Accordingly, the judgment and decree of the Trial Court is confirmed and the appeal is dismissed. No costs.