Originally the suit has been filed by the plaintiff for partition and separate possession. The fifth defendant had been added as a party to the plaint, as he has claimed title to the property and hence, even though he was not a sharer, he was impleaded as a party for a binding adjudication in respect of second schedule property.
2. The case of the plaintiff is that the suit property originally belongs to Chidambara Thevar. After the demise of Chidambara Thevar, his sons, namely, Veerappa Thevar, Kadakunju Thevar and Vaithi Thevar have been enjoying the suit property. Subsequently, Veerappa Thevar and Kadakunju Thevar have sold the property to one Adaikkala Thevar in respect of their 2/3 undivided share. Thereafter, the suit property was in joint possession and enjoyment by Vaithi Thevar and the purchaser Adaikkala Thevar. The said Kadakunju Thevar died without any male issue and his female heir was the plaintiff in the suit. Plaintiff's sisters are Sundaram Ammal and Velayee Ammal who have predeceased and her son Subbian @ Arumugam has purchased from Adaikkala Thevar in respect of 2/3 share in item Nos.1 to 3 and as far as the entire 2/3 extent for valuable consideration by virtue of a registered sale deed as early as 03.08.1948 and they have been enjoying the property jointly and commonly. Thereafter, Adaikkala Thevar in respect of his 1/3 share in item Nos.1 to 3 has sold to the plaintiff's paternal uncle (Father's brother's son) Pethaperumal Thevar for valuable consideration. Thereafter the property was jointly enjoyed by Pethaperumal Thevar. Thereafter, the property was sold by Pethaperumal Thevar to Vaithi Thevar by virtue of registered sale deed in the year 1957, who in turn had 2/3 share in respect of third item of property after having acquired 1/3 share of property from Pethaperumal Thevar. Vaithi Thevar who has not married died without any issue. Thereafter, the property was again inherited and enjoyed by his elder brother's son namely, Pethaperumal Thevar and his younger sister's daughters, namely, Velayee Ammal, Sundaram Ammal and the plaintiff. They have jointly enjoyed the property along with their share of property. Thereafter, on the death of the plaintiff's sister Velayee Ammal, her son Subbian @ Arumugam and the plaintiff and other sister Sundaram Ammal have executed sale deed dated 02.08.1960 and pursuant to the same, they have jointly enjoyed the property.
3. The first defendant has purchased the suit property from Pethaperumal Thevar on 08.07.1959 and through the first defendant, his sons namely, second and third defendants and the first defendant's brother the fourth defendant have obtained title and enjoying the property. Pethaperumal Thevar's property had been enjoyed by the defendants 1 to 4 and they in turn were enjoying the property in accordance with their own convenience. But, actually partition has not taken place and therefore, the plaintiff is entitled to item 1 and 2 an extent of 5/9 share and in item 3 an extent of 7/9 share, in item 4 an extent of 8/9 share, which the plaintiff sought for equal partition by both in person and by request from Mediators right from May, 1988. The defendants have not been acceding to the said request and in fact on 25.08.1988 the plaintiff has also issued Lawyer's notice. Even though notice has been served, none of them replied.
4. But as far as the fifth respondent is concerned, he is claiming right only in respect of item No.2 of the property. He has purchased only 52 cents out of the total extent in item 2 of the property and he is claiming title for that property, hence, he has also been added as party to the binding adjudication. The first and fifth defendants have filed separate written statements. As far as the first defendant is concerned, he has also claimed partition and also paid separate Court fee only and he has not denied partition and he has no objection for partition in accordance with the shares legally entitled to. As far as the fifth defendant is concerned, he has filed a written statement claiming that the second item was purchased by him by way of a registered sale deed dated 27.03.1946 from Velayutha Thevar and Alamelu, the brother and brother's wife respectively of the father of first defendant and subsequent to that, he has been in possession and enjoyment of the property and also acquired title by sale and adverse possession from 27.03.1946. He would specifically plead in paragraph 3 that he never claimed any share in the suit second item, as he is entitled to the entire extent as per the sale deed in the year 1946.
5. He would also contend that he has not purchased the said property from persons, who are entitled to the northern half share. In the last paragraph, he stated that he has purchased the entire extent in the said item from persons who are solely entitled to the same and in possession as per the sale deed. Basing all the pleadings, parties have let in evidence and on behalf of the plaintiff Kalimuthu Thevar was examined and on behalf of the defendants second defendant and one Ramasamy Thevar were examined and the fifth defendant has not gone into box and based on the evidence and pleadings, the following issues were framed by the lower Court, which are as follows:-
(i) whether the plaintiff is entitled for the relief as claimed for?
(ii) Whether as per the pleadings in the written statement, defendants 1 to 3 are entitled to the share in the partition?
(iii) whether in respect of second item, fifth defendant who has purchased the property by sale deed dated 27.03.1946 is correct or not?
(iv) whether the plaintiff and defendants 1 to 4 have share in that property and what relief, if any?
6. The matter was contested and the suit was ultimately, on taking into consideration the pleadings and the evidence, was decreed. The suit was decreed that the plaintiff is entitled to in respect of item 1 and 2 an extent of 5/9 share and in item 3 an extent of 7/9 share, in item 4 an extent of 8/9 share the preliminary decree was granted. Further, the defendants 4 and 5 have no share in any of the property and the property, which are in enjoyment of defendants 1 to 3, should be allotted in respect of equity.
7. As far as the appeal is concerned, only the fifth defendant is the appellant, others have not questioned the decree and even the fifth defendant has preferred the appeal only in respect of second item of the property and his only contention in the appeal is that pursuant to the sale deed dated 27.03.1946, the fifth defendant has been in possession and enjoyment of the same, and therefore, the suit is not maintainable, insofar as item 2 of the property is concerned.
8. He would also further contend that though he has claimed adverse possession, he has not argued the matter on merits, but he would only contend that the findings of the Courts below that the property originally partitioned was of no effect at all and he has purchased the property from the then original owner and therefore, share in the property and his legal right has got to be safeguarded. In this connection, it is pertinent to mention by taking into consideration the findings of the Courts below where it is categorically stated that in the partition suit filed in the year 1971 in O.S.No.155 of 1971, earlier Chidambara Thevar and Manicka Thevar have divided the property equally and in that suit, Velayutha Thevar's son Kanthasamy Thevar was also a party. As the total extent in S.No.227/5 is 1 acre 4 cents, out of which, the item 2 in the schedule is only 52 cents. In the total extent Chidambara Thevar has got 52 cents, Manicka Thevar has got 52 cents. The sale deed Ex.B3 has been executed by Manicka Thevar's son Chidambara Thevar's wife and one Velayutha Thevar son of Manicka Thevar on 27.03.1946. Manicka Thevar has got share in respect of S.No.227/5 only to an extent of 52 cents. Therefore, their legal representatives could not have executed the sale deed in respect of larger extent, that too, in respect of entire area, i.e., 1 acre and 4 cents, as they have no legal right as the lands originally belonged to Manicka Thevar and Chidambara Thevar. They in turn have divided the property equally.
9. The lower court has categorically given a finding that the partition has been claimed by the plaintiff in the suit only in respect of 52 cents of land owned by Chidambara Thevar and that the 52 cents of land is situated on the southern side of the total extent. The plaintiff in his evidence also admitted that the property is situated on the southern side. The northern portion alone belonged to Manicka Thevar which was purchased under Ex.B3. Therefore, the fifth respondent has no legal right to purchase the entire extent of 1 acre and 4 cents under Ex.B3. The lower Court also has given a finding that as per the partition suit filed in O.S.No.155 of 1971 the said Chidambara Thevar and Manicka Thevar have divided their family property into equal share and therefore, the partition claimed by the plaintiff is valid insofar as the item 2 is concerned, which is clearly mentioned that the property originally owned by Chidambara Thevar which could not have been purchased by the fifth defendant and also the sale deed Ex.B3 could not be executed by Manicka Thevar's legal representative in respect of the share of Chidambara Thevar and as rightly pointed out the claim is made only in respect of the southern half of the property which was originally admittedly belongs to Chidambara Thever. Hence, the fifth defendant has no right in respect of second item of property as even admitted by the fifth defendant that the property lies only on the southern side.
10. Further more, it was pertinent to point out here that neither the fifth defendant has been examined in this case nor he has produced any document to show his alleged possession of the entire extent of 1 acre and 4 cents. No kist receipt or adangal has produced by the fifth defendant. Therefore, the reasoning given by the lower court in coming to the conclusion is reasonable, correct and valid. Hence, the fifth defendant cannot claim any right or title to an extent of 52 cents in respect of second item of property as he has no legal right in the entire extent of 1 acre and 4 cents in respect of the property, inasmuch as the fifth defendant has not even gone into box only to substantiate his case and hence, the finding of the lower court is totally in accordance with law and does not call for any interference. Hence, the appeal is dismissed. No costs.
srm