T G ASHOK KUMAR Vs. GOVINDAMMAL

JUDGEMENT

(1.) Notice to Respondents was issued limited to the question whether the High Court ought to have decreed the Appellants suit for declaration and consequential injunction at least in respect of the portion of the suit property which was allotted to the share of second Respondent in the earlier partition suit filed by the first Respondent. Leave is granted only in regard to that question.

(2.) The Appellant was the Plaintiff in a suit for declaration of title and permanent injunction in regard to the suit property, that is, a plot measuring East to West: 49 feet and north south 81 feet, total extent of 3969 sq. ft (forming part of Natham Survey No. 178 (New No. 137-138) of a total extent of 4 acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk and District). The Appellant filed the said suit in the year 2000 in the court of Subordinate Judge, Thiruvallur (OS No. 68/2000) subsequently transferred and renumbered as OS No. 138 of 2004 on the file of the District Munsiff, Thiruvallur.

(3.) The case of Appellant in brief is as under: that the suit property was purchased by the second Respondent under sale deed dated 4.3.1957; that she was in possession and enjoyment of the suit property as absolute owner and had mortgaged it in favour of Appellants sister (T.N. Latha) on 30.6.1983; that second Respondent sold the suit property in favour of the Appellant under sale deed dated 11.4.1990 and delivered possession thereof to him in pursuance of the sale; that though the suit property was the self acquired property of the second Respondent, the first Respondent who is her step-daughter, filed a collusive suit against the second Respondent in OS No. 8/1985 on the file of the Sub-ordinate Judge, Thiruvallur alleging that the suit property and several other properties belonged to her father Ekambara Reddy and that she and second Respondent had each an half share in those properties; that the Appellant is a bona fide purchaser of the suit property from second Respondent and he was unaware of the pendency of the said suit for partition in O.S. No. 8/1985; that subsequently the said suit for partition filed by the first Respondent was decreed vide preliminary decree dated 17.3.1994 holding that the first Respondent was entitled to half share in the properties described as Items 1 to 6 in the partition suit schedule (which included the suit property (as Item No. 6); that in the final decree proceedings, a Commissioner was appointed to divide the properties; that on the basis of the Commissioners report, a final decree was passed on 7.4.2000 dividing the properties; that on account of collusion between first and second Respondents, the Commissioners report divided the suit property in a manner that nearly three fourth portion of the suit property was allotted to the share of the first Respondent and only about a one-fourth portion was allotted to the share of the second Respondent; and that adversely affected his right and title to the suit property and therefore it became necessary for him to file a suit for declaration of his right and title to the suit property with a consequential permanent injunction.