- (1.) THE 2nd and 4th defendants in O. S. Nos. 257 of 1960 and 396 of 1963 on the file of the court of the District Munsif, Devakottai, who are the one and the same persons and who lost before the courts below, are the appellants herein. The suits were instituted for rendition of accounts for different periods in respect of No. 22 in Coral Merchants St. at Madras. The genealogical tree attached to the judgment of the learned District Munsif shows the relationship between the parties. According to the plaintiffs, the property in question originally belonged to the joint family consisting of four brothers. K. R. P. R. Alagappa Chettiar, KR. PR. Karuppan chettiar alias Sinnia Chettiar, Udayappa Chettiar and Palaniappa Chettiar. Their father's case is, in 1908, there was a partition between those four brothers and at that partition, the suit property was kept in common and was managed by the first branch. It is on this allegation that the two suits for rendition of accounts in respect of the management of the property in question were instituted by the plaintiffs who belonged to the third branch. The defendants put forward several contentions, such as, the property in question not belonging to the family, the third branch to which the plaintiff belonged having been cut off from the family even in 1902, the defendants having acquired title to the property by ouster of others and the suits for rendition of accounts not being maintainable without there being a prayer for partition of the property itself. The courts below held against the appellants on all these points and passed a preliminary decree for rendition of accounts. Hence the present second appeals.
(2.) AS far as the first point is concerned, any finding on a question as to whether there was an oral partition or not and, at such oral partition, whether the suit property was kept in common or not, is essentially a finding on a question of fact to be arrived at with reference to the materials produced before the court with regard to the enjoyment of the property and other circumstances and the correctness of such a finding cannot be canvassed in the second appeal unless it is shown that such a finding is perverse or is not supported by any evidence, or material evidence bearing on the question has not been considered. No such thing has been brought to my notice as far as the present cases are concerned. As a matter of fact, the very argument of the appellants that the suit property was purchased in 1902 in the name of the fourth branch and there was a litigation in respect of the property by a person claiming an agreement in his favor anterior to the sale in favor of the fourth branch, will clearly show that it was that fact which necessitated the parties to keep the suit property in common at the oral partition. Similarly, the finding of the courts below that the appellants had not established their title by ouster must also stand. Once it is concluded that in the oral partition in 1908 the suit property was kept in common, the appellants can succeed, if at all, only by showing the particular point of time at which they asserted hostile title to the property in themselves to the knowledge of the other co-owners and had been in enjoyment of the property thereafter in their own right for a period of 12 years and more. In this particular case, the only facts on which reliance was placed in respect of the case of ouster was the fact that the property stood registered in the Corporation registers in the name of the first branch and the property tax had been paid in the name of the first branch. In my opinion, this is not sufficient to establish the case of ouster. It is not the case of the appellants that mutation of names was effected after giving notice to the other persons interested. As far as the payment of property tax is concerned, it can be paid even by an occupier and therefore that will not prove ouster on the part of the appellants.
(3.) THE finding on the question whether the third branch was excluded or not is also a finding on a question of fact supported by evidence and therefore cannot be interfered with in second appeal.;