GOPINATHAN Vs. PANKAJAKSHY AMMA

JUDGEMENT

(1.) The plaintiff in O.S.265/84 on the file of Munsiff Court, Shertallai is the appellant. Respondents are the defendants. First respondent is the mother and appellant is her son in her first marriage with Padmanabhan and respondents 2 to 6 are the children born to first respondent in her second marriage. Appellant instituted the suit seeking a decree for fixation of boundary and for permanent prohibitory injunction. Item No.2 is the building in item No.1. Item No.1 and 4 are properties originally belonged to appellant and respondents. According to appellant, under Ext.A3 partition deed of 1963 the co-ownership properties were divided and item No.1 was allotted to appellant and item 4 of the plaint schedule property to respondents. Contending that item No.3 of the plaint schedule property originally belonged to his maternal uncle and it was given by uncle to first respondent mother and she put appellant in possession of the property. It was contended that items 1 to 3 of plaint schedule properties are in the actual possession and enjoyment of appellant and respondents making use of their possession of item No.4 of plaint schedule properties attempted to trespass into the remaining properties and therefore it is necessary to fix the boundary of the properties. Appellant also sought a decree to restrain respondents from trespassing into item 1 to 3 of plaint schedule properties. Respondents in their written statement disputed the genuiness of Ext.A3 partition deed. It was contended that the partition deed was vitiated by undue influence exerted by appellant and the signature of first respondent was obtained misrepresenting that her signature is necessary for obtaining a loan. It was contended that partition deed is not valid and binding. It was also contended that subsequent to Ext.A3 partition deed, appellant along with respondents executed Ext.B2 mortgage deed whereunder it was specifically recited that the partition deed did not come into effect. It was also contended that appellant is not in exclusive possession of item 1 to 3 of plaint schedule properties and therefore is not entitled to the decree sought for.

(2.) Learned Munsiff on the evidence of Exts to A1 to A26, B1 to B14, C1 to C4 and Pws. 1 and 2 and Dws.1 and 2 granted a decree in favour of appellant and the boundary of item 1 and 4 of plaint schedule properties were fixed as demarcated in Ext.C4 plan. A decree for injunction in respect of item 1 and 3 of plaint schedule properties was also granted. First respondent challenged the decree and judgment before Sub Court, Shertallai in A.s.76/88 contending that Ext.B2 establish that Ext.A3 did not come into effect and therefore learned Munsiff should not have granted the decree. Appellant filed a cross objection challenging the finding of the trial court that respondents have got right of residence in item No.2 of the plaint schedule building situated in item No.1 of plaint schedule property. Learned Sub Judge on reappreciaiton of evidence found that though Ext.A3 partition deed was executed, from Ext.B2 jointly executed by appellant and respondents and Ext.A1 mortgage deed, it is clear that Ext.A3 partition deed did not come into effect and therefore appellant cannot claim any exclusive right over plaint schedule properties and set aside the decree granted by trial court and dismissed the suit. It is challenging the said judgment, Second Appeal is filed.

(3.) On the death of first respondent, appellant and respondents 2 to 4 were recorded as her legal heirs. Subsequent to the filing of the appeal respondents 2 to 4 assigned their right over item No.4 of plaint schedule properties in favour of appellant as per registered sale deed dated 30.7.06. In the sale deed they have specifically stated that the right assigned to the appellant is the right obtained by them under Ext.A3 partition deed and their right is transferred to appellant after receiving the consideration of Rs.1,00,000/- and it was after recognising the rights of appellant under Ext.A3 partition deed. There is also a recital that they would file a compromise petition in the Second Appeal. When the appellant produced this registered document along with I.A.2724/06 to receive it as additional evidence stating that the matter has been settled, learned counsel appearing for respondents 2 to 4 reported no instructions stating that respondents did not furnish any instruction to him. The appeal was thereafter posted and no respondent or any other counsel appeared for them.