Ramasamy vs Rajagopal(died), & Ors.

Challenging the judgment and decree passed in A.S.No.42 of 2010, on the file of I Additional Subordinate Court, Nagercoil confirming the

judgment and decree passed in O.S.No.247 of 2000, on the file of II Additional District Munsif Court, Nagercoil, the plaintiff has filed the above

Second Appeal.

The respondents 1 and 2 are the defendants in the suit. The first defendant died during the pending of the Second Appeal and his legal heir has

been brought on record as the third respondent. The plaintiff filed the suit in O.S.No.247 of 2000 for partition, permanent injunction and to declare

that the partition deed dated 23.08.1999 as null and void.

The brief case of the plaintiff is as follows:

According to the plaintiff, the defendants are his brothers. The plaintiff is the son of one Thangaiah through his first wife Thangammal. The

defendants are the sons of Thangaiah through his second wife Ponnammal. The said Thangaiah married Ponnammal as the second wife without the

consent of his first wife. Thangaiah died intestate. The plaintiff and the defendants are in joint possession and enjoyment of his properties. The

plaintiff is entitled to 1/3rd share. Since the defendants refused to partition the suit property, the plaintiff has filed the suit for partition. The

defendants tried to cut the standing trees in the suit property. Hence, the plaintiff has filed the suit for the relief of permanent injunction.

The brief case of the defendants is as follows:

According to the defendants, they are not the brothers of the plaintiff. Thangaiah Nadar married only their mother Ponnammal and he did not marry

any other woman. The plaintiff''s father''s name is Lakshmana Perumal. The said Lakshmana Perumal married Thangammal and they got two

children viz., the plaintiff and one daughter, Annalakshmi. The said Thangaiah Nadar died on 07.03.1977 and his legal heirs are his wife

Ponnammal and the defendants. The plaintiff never enjoyed the suit property and he has got no right to claim any share in the property. In these

circumstances, the defendants prayed for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, two witnesses were examined and 10 documents viz., Exs.A.1 to A.10 were marked and on

the side of the defendants, two witnesses were examined and 4 documents viz., Exs.B.1 to B.4 were marked. The trial Court, after taking into

consideration the oral and documentary evidences let in by the parties, dismissed the suit. Aggrieved over the same, the plaintiff preferred an

appeal in A.S.No.42 of 2010 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal.

Aggrieved over the concurrent findings of the Courts below, the plaintiff has filed the above Second Appeal.

The appellant has filed a petition in C.M.P.(MD)No.11455 of 2016 under Order 41 Rule 27 C.P.C., to receive five documents as additional

documents in the Second Appeal. In the affidavit filed in support of the petition, it is stated that the documents are necessary for proper

adjudication of the matter and that he is an agricultural coolie and an illiterate litigant and only on the legal advise and out of great effort, the

documents were traced out and produced as additional documents.

The learned Counsel appearing for the respondents filed his counter affidavit disputing the averments stated in the affidavit filed in support of the

petition. Further in paragraph No.3 of the counter affidavit, the respondents have stated that the trial Court gave sufficient opportunity to let in

evidence and to mark necessary documents to the appellant and after considering all the necessary documents, found that the plaintiff did not prove

his claim and dismissed the suit, which was also confirmed by the lower Appellate Court.

Heard Mr.V.Meenakshi Sundaram, learned Counsel appearing for the appellant and Mr.I.Velpradeep, learned Counsel appearing for the

respondents 2 and 3.

The appellant has raised the following Substantial Questions of Law in the Second Appeal:

Whether the Courts below are legally right in holding that the suit is barred by limitation in not seeking a relief of cancellation of

Ex.B.1 within a period of 3 years, especially when the plaintiff is not a party in the said partition deed?

Whether the Courts below are legally wrong in not considering of D.W.1''s evidence that the plaintiff is the son of

Lakshmanaperumal who is none other than the paternal uncle of defendants and whether the plaintiff is entitled to a decree on the

basis of the evidence given by the defendant which in clear terms proves he is also one of coparceners?

Whether the Courts below are wrong in not raising the presumption of marriage on account of long cohabitation disregarding the

evidence of P.W.2?

Whether the findings of the Courts below that the plaintiff is not entitled to a share in the property is based on acceptance of

inadmissible, immaterial evidence and rejection of acceptable material evidence and hence, such a finding is perverse?

Mr.V.Meenakshi Sundaram, learned Counsel appearing for the appellant submitted that when the plaintiff had established his case, by

adducing oral and documentary evidences, the Courts below have erroneously dismissed the suit. Further the learned Counsel submitted that the

Courts below have not considered the oral and documentary evidences let in by the plaintiff in a proper manner. The learned Counsel also

submitted that the additional documents sought to be marked by the appellant are necessary for proper adjudication of the matter and that the

appellant had properly explained the reasons for not producing the documents before the trial Court.

On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it

could be seen that the plaintiff contended that he is the son of Thangaiah and one Thangammal, who according to him is the first wife of Thangaiah

Nadar. Further the plaintiff contended that the defendants are the sons of Thangaiah Nadar through his second wife Ponnammal. However, the

defendants contended that they are the sons of Thangaiah Nadar and Ponnammal, who is the only wife of Thangaiah Nadar. Further the

defendants submitted that the plaintiff is the son of one Lakshmana Perumal and Thangammal. The plaintiff admitted that the defendants are the

sons of Thangaiah Nadar and Ponnammal. But the defendants contended that the plaintiff is not the son of Thangaiah Nadar and he is the son born

to Lakshmana Perumal and Thangammal. The defendants also contended that Lakshmana Perumal and Thangammal had one son and daughter

viz., the plaintiff and one Annalakshmi. However, the plaintiff has not stated anything about his sister Annalakshmi in the plaint. The said

Annalakshmi was examined on the side of the defendants as D.W.2 and in her evidence, she has categorically stated that she and the plaintiff are

the children of Lakshmana Perumal and Thangammal and D.W.2, the sister of the plaintiff has also specifically stated that their father''s name is

Lakshmana Perumal and not Thangaiah Nadar. Further in her evidence, she has stated that Lakshmana Perumal is the brother of Thangaiah Nadar

and that they were born only to Lakshmana Perumal and Thangammal. The evidence of D.W.2, who is the sister of the plaintiff cannot be

disbelieved.

When Thangaiah Nadar had died in the year 1977 itself, the plaintiff has not taken any steps claiming share in the property. The suit was filed

only in the year 2000. It is also pertinent to note that the property belonging to Thangaiah Nadar was sold by the defendants to Sivanthi Athithanar

College and this fact was also known to the plaintiff. Inspite of having knowledge about the sale made by the defendants, the plaintiff did not take

any steps immediately to prevent the sale of the property. When D.W.2, who is the sister of the plaintiff herself says that their father is Lakshmana

Perumal and not Thangaiah Nadar, the Courts below have rightly come to the conclusion that the plaintiff is not the son of Thangaiah Nadar. The

Courts below also rightly disbelieved the evidence of P.W.2. The documentary evidences produced by the plaintiff also do not support his case in

any manner. Taking into consideration all these aspects, the Courts below have rightly dismissed the suit.

Since the appellant has not explained the reasons for not producing the additional documents at the earliest point of time and the documents

were adduced at a belated stage, the said documents cannot be received as additional documents at this stage. When the suit was filed in the year

2000, the plaintiff should have explained the reasons for not producing the documents before the trial Court in a proper manner. In the absence of

sufficient reasons given by the plaintiff for not producing the documents before the trial Court, the petition in C.M.P.(MD)No.11455 of 2016 is

liable to be dismissed.

In these circumstances, I do not find any ground, much less any substantial question of law, to interfere with the concurrent findings of the

Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs.

Consequently, the connected Miscellaneous Petition is also dismissed and C.M.P.(MD)No.11455 of 2016 is also dismissed.