GANAPATHI IYER Vs. SUNDARAMURTHY

JUDGEMENT

(1.) DEFENDANTS 1 and 2 in O.S.No.12 of 1983 are the appellants in A.S.No.347 of 1986.

(2.) THE case of the plaintiffs is as follows: THE first plaintiff's great great grand father Kandasami Aiyya belonged to Kandanpalayam. He came to Chidambaram more than two hundred years back and occupied a portion of A schedule item No.1 of the suit property. THE suit property was originally a waste land. Be built cottage and cultivated dry crops therein. Kandasami Aiyya was a pious and religious man. He belonged to Veerasaivam (lingayath). He was preaching Lingayath and he was residing therein. He had only son by name Vaithilinga Aiyya. After the death of Kandasami Aiyya, his son Vaithilinga Aiyya improved the place. He buried his father in the said place, built a samadhi, put up a lingam in the said place for his worship and called it as Adhilingam. He also built a well to supply water for irrigation purposes to the garden. He planted trees and formed flower garden and vegetable garden. He also served as poojari and had additional earnings. He got assignment of the lands in his favour and Vaithilinga Aiyya helps for his family. His only son was Apparswami Aiyya. He succeeded to item No.1 of the A schedule property. He was well versed in Tamil and Sanskrit and he had many devotees and disciples. He served as Gurukkal in many temples. He was also a mandhirik. He taught mandhirik to his disciples. He had clients all over India and he had large earnings out of the same. He built many of the buildings in item 1 of A schedule property. Patta was also transferred for item 1 of the property in his favour. He also acquired item No.2 of the A schedule property and got assignment in his favour. THE said place is now being used to bury the family members. A portion of item No.2 of the A schedule property was converted as nanja land. Since he was a mandhirik, he built four buildings in the suit place for his residence and to accommodate his visitors. He installed deities and put up a Sabha Mandapam in the suit place. He also installed idols referred to in the B schedule in the Sabha Mandapam. He also purchased 2 " kani of nanja lands at Thillainayagapuram later on sold by the plaintiffs and defendants 1 and 2 on 15.7.1981. Apparswami Iyer died in the year 1950. After his death his two sons Devasenathipathi Aiyar and Somasundaram Aiyya succeeded to the suit properties and were residing in item No.1 of A schedule property. THEy also enjoyed the suit properties jointly. Devasenathipathi Aiyyar died in the year 1956 leaving his two sons by name Vaithinatha Iyer and Panchanatha Iyer the first plaintiff. Vaithinatha Iyer died in the year 1952 without any issues. Somasundaram Aiyar also died in the year 1966 leaving his son Ganapathi Aiyar the first defendant. THE second defendant is the son of the first defendant. THE first plaintiff died. Plaintiffs 2 to 5 sons of the first plaintiff and brought as his legal representatives. THE plaintiff's family and defendants 1 and 2 are residing in the suit item No.1 of A schedule property and they are in enjoyment of the suit properties jointly. THEy are performing poojas for the deities and samadhi jointly. THE suit properties are now in joint possession and enjoyment of the plaintiffs and defendants 1 and 2. THE first plaintiff and the first defendant jointly built up the brick built compound wall all round the suit property in item 1 of A schedule. THE building bearing door No.11-A, 12, 12-A are put up by the tenants on a contract basis and as per the agreement after the stipulated contract period the same vest with the plaintiffs and defendants 1 and 2 for they had enjoyed the suit property as per the contract. Defendants 3 to 13 are the tenants and they are in occupation of the building on contractual basis. THE ownership vests with the plaintiffs and defendants 1 and 2 after the contract period. Defendants 14 and 15 are cultivating dry crops and nanja lands respectively. THE plaintiffs, legal heirs of one group are entitled to half share and defendants 1 and 2, legal heirs of other group are entitled of half share. B schedule properties are ancestral properties exclusively belonging to the plaintiffs and defendants 1 and 2 and their family members. THEy are movables stored in the Arthamandapam. Disputes arose between the plaintiff and defendants 1 and 2 in performing Annabishekam pooja in the Sabha Mandapam. So, it is impossible for the plaintiffs to enjoy the suit property jointly. Hence, the plaintiffs are constrained to file the suit for partition and separate possession of their half share in the suit properties.

(3.) THE first defendant filed written statement contending as follows: Suit item 1 did not belong to Kanagasabai nor it was inherited by Vaithilinga Ayyar. Vaithilinga Ayyar never made improvements in the property. Vaithilinga Ayyar never married Sivakami as his second wife. THE children alleged to have born to them are not the sons of Vaithilinga Ayyar. Vaithilinga Ayyar did not own and possess B schedule properties. He never performed any guru pooja. It is not true that on the death of Vaithilinga all his five sons became entitled to 1/5 share each in plaint A and B schedule properties. THE suit properties belonged to Apparsamy Ayyar and on his death, the properties devolved upon his son Devasenathipathi who was performing the poojas and after the death of Devasenathipathi his son Panchanatha Ayyar and on his death, defendants 1 to 4 are entitled to the properties and were performing poojas and other religious functions. THE plaintiffs and defendants 7 and 8 are not the second wife's sons of Vaithilinga Ayyar. THEy never lived with the family of defendants 1 to 4 or defendants 5 to 6. THEy never exercised, claimed or asserted any right or title to the suit property. This defendant filed O.S.No.12 of 1983 on the file of this Court and obtained a decree for half share in the suit property against defendants 5 and 6 and the appeal preferred by defendants 5 and 6 A.S.No.347 of 1986 is pending. Defendants 5 and 6 are estopped and barred from attacking the decree in O.S.No.12 of 1983.