MUTHUSAMY Vs. MEENAKSHI SUNDARAM

JUDGEMENT

(1.) THE deceased sole defendant to the suit U.Muthu Udayar having been substituted by his legal representatives in the trial court itself, have filed the above second appeal against the judgment and decree dated 2.1.1998 made in A.S.No.23 of 1997 by the Court of Subordinate Judge, Sivaganga thereby setting aside the judgment and decree dated 20.11.1995 made in O.S.No.152 of 1991 by the Court of District Munsif, Manamadurai.

(2.) TRACING the history of the case, it is the respondent herein who has filed the suit in O.S.No.152 of 1991 on the file of the Court of District Munsif, Manamadurai praying for declaration of his title to the suit property and for permanent injunction restraining the deceased first defendant from in any manner interfering with his peaceful possession and enjoyment of the suit property and for costs thereby pleading that the grandfather of the plaintiff and the deceased first defendant viz., Sarakku Khatha Nadar had some ancestral properties and self-acquired ones; that their father viz., Udayar was leading a wayward life whose son is the deceased first defendant, but since the mother of the deceased first defendant passed away in two years after her marriage with the said Udayar, he married another Meenakshi through whom the plaintiff was born; that their father was also having illicit intimacy with one Unnamalai to whom a female child viz., Muthammal was born; that thereafter, the plaintiff along with his mother and the deceased first defendant were living as one and the same family at Alambacherry and the said Unnamalai and her daughter Muthammal were living separately at Kochadai village.

(3.) IT is only aggrieved against this judgment and decree passed by the first appellate court, the legal representatives of the deceased first defendant have preferred the above second appeal on certain grounds such as brought forth in the memorandum of second appeal, namely, (i) that the lower appellate court has erred in law in developing a new case, which was not pleaded by either parties; (ii) that the lower appellate court has erred in law in not relying on the version of the sale deed (Ex.B-1) which is under challenge after 47 years of its execution by a person who was not at all born at that time; (iii) that the lower appellate court has erred in observing that even though there was no evidence to show the partition since the property has been purchased from out of the income from the ancestral property of the plaintiff, the plaintiff is entitled to partition, which is not at all the case of the plaintiff; and (iv) that the lower appellate court has relied on surmises and has passed a wrong judgment. On such and other grounds, the appellants would pray to allow the above second appeal with costs throughout.