Case Note & Summary
The respondent/plaintiff, Ammakannu Ammal, filed a suit for partition and separate possession of a 1/7th share in the suit properties, claiming that the properties were the self-acquired properties of Rayar Gounder and his sister Kuttiammal, who died intestate. The plaintiff, being one of the four daughters of Rayar Gounder, along with her mother and siblings, inherited the properties. The appellant/first defendant, Ponnusamy, one of the sons, claimed exclusive rights based on an alleged oral partition in June 1985 and adverse possession. The Trial Court decreed the suit, granting a preliminary decree for 1/7th share to the plaintiff. The First Appellate Court confirmed this decree. In the Second Appeal, the appellant raised substantial questions of law regarding the validity of the oral partition and adverse possession. The High Court, after hearing arguments, found that the concurrent findings of fact by the courts below were based on proper appreciation of evidence. The appellant failed to prove the oral partition with any documentary evidence or reliable witnesses. The plea of adverse possession was also not established as the appellant did not prove the date of ouster or hostile possession for the statutory period. The High Court dismissed the Second Appeal, confirming the decree for partition.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence - The appellant failed to demonstrate any perversity in the findings of the courts below regarding the oral partition and adverse possession (Paras 6-14). B) Property Law - Oral Partition - Burden of Proof - The party pleading an oral partition must prove it by cogent evidence - In the absence of any documentary evidence or reliable testimony, the plea of oral partition cannot be accepted - The appellant's claim of oral partition in June 1985 was not supported by any contemporaneous document or independent witness (Paras 7-10). C) Property Law - Adverse Possession - Limitation - Article 65 of the Limitation Act, 1963 - The plea of adverse possession must be specifically pleaded and proved by clear and unequivocal evidence of hostile possession for over 12 years - The appellant failed to establish the date of ouster or the nature of possession adverse to the plaintiff's interest (Paras 11-13).
Issue of Consideration
Whether the courts below erred in decreeing the suit for partition without considering the plea of oral partition and adverse possession raised by the appellant?
Final Decision
The Second Appeal is dismissed. The judgment and decree dated 21.03.2011 in A.S.No.9 of 2006 on the file of the Subordinate Judge, Gingee, confirming the decree and judgment dated 20.01.2005 in O.S.No.59 of 1995 on the file of the Additional District Munsif, Gingee, are confirmed. No costs. Consequently, connected miscellaneous petition is closed.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- oral partition
- adverse possession
- limitation
- Hindu Succession Act
- 1956
