C ARUMUGHATHAN Vs. S MUTHUSAMI NAIDU

JUDGEMENT

(1.) THIS appeal has been preferred by the ninth defendant in O.S.No.223 of 1977 on the file of the Principal Subordinate Judge, Madu-rai challenging the decree and judgment passed in the above suit for permanent injunction or in the alternative for recovery of possession.

(2.) THE case of respondents 1 to 3 plaintiffs 2 to 4 as disclosed from the plaint can be briefly stated as follows: THE subject matter of this appeal is only in respect of item 42 of the plaint A Schedule properties, to an extent of 4.74 acres. According to the plaintiffs, the deceased first plaintiff and one Chinnama Naidu who is the father of defendants 1 to 3, are brothers. THE said Chinnama Naidu, who was the elder brother died on 1.1.1963 and they constituted a joint Hindu family. THE properties described in A Schedule, including item 42, were comprised of the properties acquired by the deceased first plaintiff and the deceased Chinnama Naidu. THE deceased first plaintiff is entitled to half share while defendants 1 to 3 who are the legal heirs of Chinnama Naidu are entitled to the remaining half Share. One Alagan (since dead), the ninth defendant (appellant herein) and the 12th defendant are brothers. Defendants 4 to 8 are the heirs of the said Alagan. Defendants 10 and 11 are the sons of the ninth defendant and they constituted a joint Hindu family. THE ninth defendant is the present joint family manager. Item 42 in the Plaint A Schedule properties originally belonged to the joint family of late Alagan and his two brothers. THE deceased Alagan borrowed from Errammal wife of Thambu Chinnama Naidu, elder brother of the deceased first plaintiff's father. He also incurred other sundry debts for family expenses. In order to discharge the debt incurred by him, he executed a registered othi deed dated 25.11.1933 in favour of Errammal for Rs.500 in respect of the said item. Errammal was in possession and enjoyment of the property as othidar. In view of the relationship of the parties, the deceased first plaintiff and his brother used to cultivate the othi land also on behalf of Errammal. Errammal died in or about 1946 leaving behind her the deceased first plaintiff and his brother as her heirs. THE deceased first plaintiff's elder brother who was the senior member of the family for himself and on behalf of the first plaintiff was cultivating the othi land. In or about 1955 the deceased Alagan discharged the othi. THEreafter also, he was borrowing monies from others and othied the land. On 17.5.1956 Alagan and his two brothers (defendants 9 and 12) executed a registered sale deed in respect of the said item in favour of the deceased first plaintiffs elder brother Chinnama Naidu, he being the eldest male mem- "ber of the family and he was managing the joint family. THE family of the deceased first plaintiff had been paying kist for the said item even during the life time of Errammal. By virtue of their possession and enjoyment openly and continuously to the knowledge of defendants 4 to 12, the deceased first plaintiff and his elder brother and after his death, defendants 1 to 3 required the property by adverse possession. THEy also effected improvements by putting seemai karuvela live fence along the boundaries and planted mango and coconut trees. THE ninth defendant's name was also included in patta No. 155 in respect of the said item. THE deceased first plaintiff fell ill in or about May, 1973. On hearing that, defendants 4 to 12 were cutting the seemaikaruvela trees. THE deceased first plaintiff sent for the first defendant and questioned him regarding cutting of the trees. It was only at that time, he came to know that the first defendant filed a suit O.S.No,238 of 1974 on the file of the District Munsif's Court, Melur, for a permanent injunction restraining defendants 4 to 12 herein from interfering with his enjoyment of the said item. THE said suit was dismissed. He was unsuccessful in the appeal, A.S.No.181 of 1976 as well as the second appeal in the High Court. It is stated that then the deceased first plaintiff took the first defendant to task for not consulting him before filing the suit or for conducting the suit or appeal without his knowledge. THEreupon he got the papers relating to the proceedings and found that full instructions were not given for drafting the plaint and for conducting the said proceedings. He would state that since the deceased first plaintiff was not a party to the said suit, any decision therein cannot bind the deceased first plaintiff and cannot operate as res judicata Further, the District Munsif's Court, Melur, is not the competent court to try the suit. It is also stated that in view of the conduct of the first defendant, the deceased first plaintiff filed the suit for a declaration that item 42 belongs to the deceased first plaintiff and the first defendant and also for permanent injunction restraining defendants 4 to 12 from interfering with the first plaintiffs possession and enjoyment of the same jointly with the first defendant till a partition is effected and for partition and separate possession of his half share in the A and B Schedule properties or in the alternative f6r recovery of possession. THE first plaintiff died pending suit. Hence his sons and daughter were impleaded as plaintiffs 2 to 4.

(3.) DEFENDANTS 3 and 14 to 16 adopted the written statement filed by the first defendant.