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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2024
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR C.S.No.193 of 2023
S.Padmavathi .. Plaintiff Versus
1.B.Venkatesan
2.B.Viswanathan
3.B.Anandan .. Defendants Civil Suit filed under Order IV Rule 1 of High Court O.S. Rules 1956 read with Order VII Rule 1 of CPC for the following reliefs:
a) for partition and separate possession of plaintiff's 1/4thshare in the suit schedule properties and deliver her share in the suit schedule property;
b) for permanent injunction restraining the defendants, their men or agents or servants or anyone acting on their behalf from alienating or altering the suit schedule property, until partition is effected as per preliminary decree to be passed by this Court;
d) for cost of the suit;
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For plaintiff : Mr.E.Senthil Kumar for M/s.Sampath Kumar and Associates For defendants : Mr.S.Umapathy for D1 & D2 No appearance for D3
JUDGMENT
This civil suit has been filed for preliminary decree of partition of 1/4thshare of the plaintiff in the suit schedule property and permanent injunction restraining the defendants from alienating or altering the suit schedule property.
2. The plaintiff is the sister of the defendants. She claims that the property originally belongs to the mother of the parties. The plaintiff and the defendants are claiming their 1/4thshares in the suit schedule property. Hence, the suit has been laid for preliminary decree. The only defence in the written statement is to the effect that the description of the property is not correct. Further, it is stated that the plaintiff is not in joint possession. In respect of other aspects, the title of the property is not in dispute.
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3. In view of the above, this Court is of the view that when there is no triable issue, the suit itself can be disposed on the basis of admissions made in the pleading. The admissions can also be inferred directly from the pleadings when there is no specific denial in the written statement as per Order VIII Rule 5 of Code of Civil Procedure. As the relationship is not disputed and the property is purchased by the mother of the parties, after her death, the parties, i.e., plaintiff and the defendants are each entitled to 1/4th share, is not in dispute.
4. The only defence taken in the written statement is that the plaintiff is not in the possession of property, except the evasive denial in the written statement, there is no specific denial made. The evasive denial, it will be taken as a deemed admission. Further, even assuming that the plaintiff is not in possession that itself is not a ground to hold that she is not entitled to her share in the property. It is not the case of the defendants that they ousted the plaintiff from the suit property or their prescribed title by adverse possession. In the absence of such plea, mere averment to the effect that plaintiff is not in possession will not disentitle her from claiming her share.
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The suit has been laid for claiming their rights. Merely, because one of the co-owner is in possession of the property, it cannot be said that the other co- owners is totally excluded from the property. In Law, possession of one co- owner is deemed possession on behalf of others. As there is no triable issue, the suit itself is disposed under Order XII Rule 6 of Code of Civil Procedure. Accordingly, preliminary decree is passed.
5. Such view of the matter, the preliminary decree is passed declaring the plaintiff is entitled to 1/4thshare and similarly, the defendants 1 to 3, each are entitled to 1/4thshare in the scheduled property. The shares are to be divided if proper necessary Court Fee has been paid by them.
6. Accordingly, preliminary decree is passed and the suit is disposed of. However, bearing in mind the relationship between the parties, the parties are directed to bear their own costs in the suit.
04.03.2024
dhk
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N.SATHISH KUMAR, J.
dhk
C.S.No.193 of 2023
04.03.2024
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