THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM,J.
C.S.No.1 of 2014
1. Dr.Lakshmanan Saravanan
2. Dr.S.Mahalakshmi ... Plaintiffs Vs T.M.Ramachandra Reddy ... Defendant Prayer:- Civil Suit is filed under Order IV Rule 1 of Original Side Rules for passing a preliminary decree of partition and separate possession of the suit schedule property by effecting the division of the same by metes and bounds and to allot 2/3rd share jointly to the plaintiffs and consequently by appointing an Advocate Commissioner to divide the schedule mentioned property by metes and bounds and make a partition of the property and to allocate 2/3rd share to the plaintiffs and the remaining 1/3rd share to the defendant.
For Plaintiffs : Mr.D.Manimaran For Defendant : Mr.T.S.Rajamohan
J U D G M E N T
This suit has been filed by the plaintiffs for passing a preliminary decree of partition and separate possession of the suit schedule property by effecting the division of the same by metes and bounds and to allot 2/3rd share jointly to the plaintiffs and consequently by appointing an Advocate Commissioner to divide the schedule mentioned property by metes and bounds and make a partition of the property and to allocate 2/3rd share to the plaintiffs and the remaining 1/3rd share to the defendant.
2. The brief facts of the case is as follows:-
a) The plaintiffs state that originally the suit property viz. New No.284 (Old No.206), Plot No.22/1 and Lay out No.15/6 measuring to a total extent of 3358 sq.ft. morefully described in the schedule, belonged to one T.K.Muni Reddy, who had purchased the same from one T.S.Narayansamy vide Sale Deed dated 06.09.1963 and registered as Document No.2747 of 1963. After the purchase of the said property, the said T.K.Muni Reddy had put up construction as a building consisting of ground floor. Thereafter, the said T.K.Muni Reddy died intestate on 07.06.1981 leaving behind the defendant as well as one T.M.Kanniah and R.Amirtha Ammal as his legal representatives. On the death of said T.K.Muni Reddy, his aforesaid legal representatives have inherited the said property by succession. Hence, the defendant as well as the said T.M.Kanniah and R.Amirtha Ammal became the joint owners of the suit property having equal un-divided 1/3rd share each in respect of the suit schedule property.
b) While so, the plaintiffs have intended to purchase the suit property and approached the defendant as well as the other two legal heirs of T.K.Muni Reddy viz. T.M.Kanniah and R.Amirtha Ammal. Even though all the three of them have agreed to sell and execute the deed of sale in favour of these plaintiffs, the defendant withdraw from the sale transaction and he has not come forward to sell and execute his 1/3rd undivided share in the suit property to the plaintiffs herein, despite repeated requests.
c) As per the terms agreed upon between them, the deed of sale dated 20.04.2009 had been executed by the said T.M.Kanniah and R.Amirtha Ammal to and in favour of these plaintiffs pertaining to their undivided 2/3rd share of land and building in the suit property, which was registered as Document No.2482 of 2009 at Sub Registrar Office, Sembium, Chennai. The plaintiffs, after having purchased the 2/3rd undivided share of the suit property, were never permitted by the defendant to enter into the suit property even though they are in constructive and joint possession of the same.
d) This being the position, the defendant has filed a suit in O.S. No.5522 of 2009 seeking for a preliminary decree in respect of his undivided 1/3rd share in the suit property and for a permanent injunction restraining these plaintiffs from interfering with the defendant's peaceful possession and enjoyment of the suit schedule property. Being the 3rd and 4th defendants in the said suit, the plaintiffs have filed an Application in I.A. No.20820 of 2010 seeking for an appointment of receiver to inspect the said property and the the learned III Assistant Judge, City Civil Court, Chennai, by an order dated 20.04.2011 allowed the same. Aggrieved by the said order, the defendant preferred a Civil Miscellaneous Appeal. The learned VII Additional Judge, City Civil Court, Chennai by order dated 20.04.2011 dismissed the said appeal. As against the said dismissal order, the defendant preferred a Civil Revision Petition before this Court. This Court directed the III Assistant Judge, City Civil Court, Chennai to dispose of the suit within a period of three months. Thereafter, the defendant has protracting the proceedings by filing one application after another by raising false and untenable allegations and as against the dismissal order passed by the learned III Assistant Judge, City Civil Court, Chennai, the defendant has preferred an appeal in C.M.A. No.52 of 2012, which is pending before the V Additional Judge, City Civil Court, Chennai. Hence, this suit.
3. The defendant has stated that the plaint filed by the plaintiffs is liable to be rejected on the ground that there was no absolute cause of action for filing of the suit and the plaintiffs are not in joint and constructive possession as stated by them. He would submit that the plaintiffs purposely purchased the 2/3rd share of the suit property through a registered document. Subsequent to the filing of partition suit, the plaintiffs hurriedly purchased the 2/3rd share of the suit property from T.M.Kanniah and R.Amirthammal. The suit property is ancestral in nature. When there was no partition was effected among the legal heirs either orally or through writing, the very purchase of the 2/3rd share of the suit schedule property by the plaintiffs is totally illegal and the sale deed does not contain the correct share of the plaintiffs. Therefore, he prays for dismissal of the suit.
4. Heard Mr.D.Manimaran, learned counsel appearing for the plaintiffs and Mr.T.S.Rajamohan, learned counsel appearing for the defendant.
5. It is seen that the defendant herein had taken up an Application No.1881 of 2016 under Order XIV Rule 10(i) of Original Side Rules wherein in para 6, the defendant had categorically admitted that the above said legal heirs namely T.M.Kanniah and R.Amirthammal sold their respective undivided 1/3rd share each over the suit property to and in favour of the plaintiffs vide Sale Deed dated 20.04.2009 registered as Document No.2482 of 2009. Further more, in the said application, the defendant had annexed a sketch and pleaded to demarcate the schedule mentioned property as mentioned in the sketch. At the same time, the plaintiffs in their counter to the said application also annexed a sketch wherein they pleaded to demarcate the schedule mentioned property as per the sketch.
6. Thus, it is evident that the defendant had also agreed that the plaintiffs are entitled to 2/3rd share over the schedule mentioned property. However, with regard to the demarcation of schedule mentioned property, the plaintiffs and defendant have to exercise their remedy by taking appropriate Application.
7. In the result, the suit is decreed in favour of plaintiffs declaring that the plaintiffs are entitled to 2/3rd share as prayed for and the defendant herein is entitled to remaining 1/3rd share. In this regard, the preliminary decree is passed in favour of the plaintiffs. Consequently, connected Applications are closed. No costs.
24.01.2017 Index:Yes/No vga K.KALYANASUNDARAM,J.
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