RAJAGOPAL Vs. P NIRMALA

JUDGEMENT

(1.) SECOND Appeal No.1047 of 2006 arises against the judgment and decree in A.S.No.20 of 2000 on the file of Subordinate Court, Sankari reversing the judgment and decree in O.S.No.147 of 1994 on the file of District Munsif Court, Sankari. The SECOND Defendant in the Suit is the Appellant, the First Respondent was the Plaintiff and the Respondents 2 to 4 were the Defendants 1, 3 and 4. The Plaintiff and the Respondents 2 to 4 were the Defendants 1, 3 and 4. The Plaintiff filed the Suit in O.S.No.147 of 1994 on the file of District Munsif Court, Sankari for partition and separate possession.

(2.) SECOND Appeal No.1048 of 2006 arises against the judgment and decree in A.S.No.21 of 2000 on the file of Subordinate Court, Sankari reversing the judgment and decree in O.S.No.232 of 2006 on the file of District Munsif Court, Sankari. The Plaintiff is the Suit is the Appellant, the First Respondent was the SECOND Defendant and the Respondents 2 to 4 were the Defendants 1, 3 and 4 in the Suit. The Plaintiff filed the Suit in O.S.No.232 of 2006 on the file of District Munsif Court, Sankari for declaration and injunction.

(3.) THE brief case of the Respondents, in both the Suits are as follows: (i) According to the Respondents, the Defendants 1, 3 and 4 are none other than father, mother and brother of the Plaintiff. THE Plaintiff"s father, the First Defendant, had one son and five daughters. Originally, the suit property is the self acquired property of the Defendants 1 and 2"s mother Papayee @ Perymayee Ammal. THE said Perumayee Ammal had executed a Sale Deed in favour of her sons on 28.5.1958. THErefore, it is the separate property of her six sons. (ii) According to the Respondents, the First Defendant indebted to several persons including one Perumal, Periyasamy and Sellandi. THE First Defendant, in order to defraud the lawful claim of the creditors, executed a settlement in favour of his daughter Poongodi. (iii) According to the Respondents, to discharge the family debts of the Plaintiff and for education and employment, the Plaintiff"s father, 1st Defendant, Defendant 3 and 4 on behalf of the Plaintiff had sold the suit property to the Second Defendant. THE said sale was only for the purpose of family expenses and for the welfare of the Plaintiff and the Fourth Defendant. THE sale amount was only for the benefit of the family and for the welfare of the Plaintiff and her brother, the Fourth Defendant. THE Plaintiff has not filed any Suit against them and not added all the properties of her father for proper and complete adjudication. THE Plaintiff has not filed any Suit for cancellation of deed. (iv) According to the Respondents, the suit property absolutely belong to the Second Defendant and the Plaintiff cannot ask for partition. THE Suit is hit under Order 2, Rule 2, C.P.C. THE Appellant if aggrieved ought to have made all the claims by way of making a counter claim at the time of filing Written Statement and ought to have claimed all the reliefs in the Suit. Having waived such a claim in the earlier Suit, the Plaintiff in law is precluded from making such a claim by way of separate Suit. In these circumstances the Respondents prayed for decree in O.S. No.147 of 1994 and dismissal of O.S. No.232 of 1996.