LAKSHMIAMMAL Vs. C P NANJAPPAN

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned Dstrict Judge, Coimbatofe in AS No 129 of 1986, reversing the judgment of the learned Principal District Munsif, Coimbatore, in O S No 2145 of 1981 Defendants 2 and 3; in the Suit are the appellaents in the above second appeal

(2.) The suit was filed by the plaintiff for a decree directing the defendants to divide, the suit property into three equal shares by metes and bounds and the plaintiff be allotted and put in exctusive possession of one such separate share and granting such ancillary and incidentel reliefs According to the plaintiff, late, Ponnai Gowder is the common ancestor of the plaintiff and the defendants The plaintiff is the son of Ponnai Gowder The other two sons of Ponnai Gowder being Dasai Gowder and Ponniah Rajan Both of them are since dead and the first defendant is the son of Dasai Gowder, the second defendant is the wife of Dasai Gowder and the third defendant is the daughter of Dasai Gowder and they are the legal heirs of Dasai Gowder and constitute the members of his family The fourth defendant is the son of Ponniah Rajan and the fifth de fendant is the wife of Ponniah Rajan and they are the, legal heirs of Ponniah Rajan constituting the members of hts family After Ponnai Gowder died in the year 1944, there was a partial partition between the, plaintiff and Dasai Gowder and Ponniah Rajan in the year 1948 As disputes arose between three brothers the matters were referred to Arbitration by Mr C S Rathnasabapathy:Mudaliar, who passed an award on 11.11.1951, The plaintiff obtained a decree in terms of the award or) 5.4.1958 in 6. P. No. 92 of 1952 on the file of Sub Court, Cqimbatore. The said award had become final and the plaintiff, Dasai Gowder and Ponniah Rajan were holding and enjoying the respective properties allotted in accordance with the said Arbitration award and decree. According to the plaintiff, the plaint schedule property being a building site with a tiled shed was purchased by Ponnai Gowder under a sale deed dated 20.8.1930. Though the property was an ancestral family property, liable for division between three sons of Ponnai Gowder, no division of property was effected under the decree in O.P.No.92 of 1952. The property was held in common and division was postponed. The reason why the plainjt property was not divided at all was that there was a proposal to give the said property to R. Rajagopai who was a deypted employee of the family from the year 1930 and was a trusted driver of Ponnai Gowder during his lifetime. It was in view of the said proposal the property was left out of the partition. However, subsequently, the proposal did not materialise and was given up. Even before the death of Dasai Gowder in the year 1976, the plaintiff approached him with regard to the property, but as he was very sick, the subject was not pursued with him and ho partition was effected. Subsequently, the plaintiff was approaching defendants 1 and 2 for partition of properties, but they were evading the issue and in May, 1981, the second defendant had advanced untenable contentions that the property belongs to their branch and there was ho question of any partition. The plaintiff was shocked by the stand of the second defendant and subsequently, discovered that in a partition in their family of the first defendant in the year 1976 they had allotted the whole of the said property to the share of the first defendant as if their branch was entitled to the entire property.

(3.) In the written statement filed by the first defendant and adopted by defendants 2 and 3, it is stated that the suit property was allotted exclusively and given to Dasai Gowder who was holding and enjoying the same as his exclusive and absolute property. There was no proposal to give the property to the driver Rajagopal. Neither the plaintiff nor the said Ponniah Rajan had ever claimed any right in the said property after 1948 since when Dasai was holding the same exclusively in his own right and to the knowledge of the others. The contention that the property was held in common and the division of the same was postponed, was denied. The property was duly registered in the name of Dasai Gowder in the municipal records and he was paying taxes for the same. He also obtained water supply connection and was also paying all the taxes to the municipality. He was also leasing out the properties and collecting rents for nearly three decades and the plaintiff had also lost his alleged right by prescription. At no point of time, neither the plaintiff nor his brother Ponniah Rajan had ever asserted any right over the property. Dasai Gowder was never approached by the plaintiff for the alleged partition: Such claims have been introduced only to support the speculative and false claim taking advantage of the mistaken description in setting out item No.7 in the Award under the head of the properties belonging to Dasai Gowder. The said mistake is being taken advantage of as an omission to contend that the property was not allotted to Dasai Gowder. The case of the plaintiff was also belied by the circumstance that the suit property is not one of the items mentioned in schedule C ppended to the award as one of the undivided properties left in common. The defendants further state that ever since 1948 Dasai Gowder was in exclusive possession and enjoyment of the properties in his own right to the exclusion of the plaintiff and Ponniah Rajan to their knowledge. Therefore, Dasai Gowder had perfected title by adverse possession and he never recognised the rights of others. Even before the death of Dasai Gowder, there was a partition in his branch and all the parties were aware of the partition. The building on the land was dilapidated and the tenants were cleared and the first defendant was contemplating to put up a substantial construction for which he was making arrangements. Therefore, there was no basis for the suit and the same was liable to be dismissed.