BALACHANDRAN Vs. GOPALAN

JUDGEMENT

(1.) The plaintiffs in O.S. No.394 of 1983 on the file of the Subordinate Judge, Palghat are the appellants. They filed the above suit for partition. The suit was dismissed by the trial Court. Hence they filed an appeal in A.S. No.71 of 1987 before the District Judge, Palghat, wherein also they did not succeed.

(2.) The above suit was filed by the appellants on the averments that they and respondents 1 to 13 (defendants 1 to 13) are the members of Hindu Ezhava community following Hindu Mitakshara Law. One Pangi, maternal grandfather of the appellants, one Karuppan, father of respondents 1 to 7 (defendants 1 to 7) and father-in-law of 8th respondent (Defendant No.8) and grandfather of respondents 9 to 13 (defendants 9 to 13) and the first respondent (first defendant) executed Ext. B 5 Verumpattam Chit in the year 1126 M.E. in favour of the jenmies of the land, viz. respondents 14 to 19 and the executants had been in possession of the suit property Among the three executants of Ext. B-5, Karuppan died in the year 1964. Therefore his one third right has devolved upon his children, viz. respondents 1 to 7 and another son Velayudhan, whose wife is 8th respondent and whose children are respondents 9 to 13. Pangi assigned his one third right in favour of the appellants under Ext. A-7 dated 8-6-1966. Hence the suit is filed for one third share of the appellants.

(3.) The suit was resisted by the contesting respondents, 14 to 19 jenmies, that in respect of the plaint schedule property, a suit in O.S. No.248 of 1971 was filed by the 7th defendant for partition before the Munsiff Court, Palghat. The suit was decreed in part as per Ext. A-4 judgment, where the first defendant alone was held to be the tenant and therefore, an appeal in A.S. No.142 of 1975 was filed before the Sub Court, Palghat, wherein it was found that Pangi, Karuppan and the first defendant are the tenants. Then a second appeal was filed before this Court in S.A. No.840 of 1976. This Court allowed the appeal, upholding the judgment of the trial Court that the first respondent alone has got the Verumpattom tenancy right. Ext. B-31 is the certified copy of the Judgment in S.A. No.840 of 1976. Therefore, in view of Ext. B-31 judgment of this Court, the appellants are not entitled to ask for partition and further a petition filed before the Land Tribunal, Palghat, for resumption of a portion of the property was allowed in favour of the land owners in O.A. 502 of 1965 and that also substantiates the contention of the respondents that the appellants' assignor was not in joint possession of the suit property as a tenant. Ext. B-22 is the certified copy of the order in O.A. No.502 of 1965 and further the first respondent has been in continuous possession from the date of Ext. B-5. Thus the judgment in the earlier suit O.S. No.248 of 1971 will operate as res judicata as against the claim of the present appellants and further the appellants' claim through Pangi is barred by estoppel, waiver and acquiescence by Ext. B-4 partition deed dated 28-3-1970.