SIRAJUDEEN Vs. SETHU CHETTIAR

JUDGEMENT

(1.) First defendant in O.S. No. 70 of 1985 on the file of Subordinate Judge, Sivaganga, aggrieved by the decree dated 8.12 88, has preferred the above appeal. The plaintiffs / respondents 1 to 6 filed the said suit for declaration that the suit property belongs to them and the second defendant, permanent injunction restraining the first defendant and his men from in any way interfering with possession of plaintiffs and second defendant. On appreciation of evidence, the learned Subordinate Judge has decreed the suit as prayed for, hence the first defendant alone has filed the present appeal.

(2.) The case of the plaintiffs is briefly stated hereunder:- The suit property belongs to the plaintiffs by ancestral right. It was purchased by great grand father of the first plaintiff, one Palani Chettiar under deed dated 22.9.1887 for a sum of Rs.67. After taking delivery, the said Palani Chettiar was in possession and enjoyment of the property. On the death of the said Palani Chettiar, his sons and grand sons have been in uninterrupted possession and his descendant Palaniyandy Chettiar was the owner and after him his four sons, viz., plaintiffs 1, 3 and 4 and one Arumugam Chettiar enjoyed. Arumugam is now dead and his son is second plaintiff. The second plaintiff is the manager of his unit of the family. By virtue of long uninterrupted possession and enjoyment from 1887 till date, the plaintiffs have also prescribed title to the suit property. The plaintiffs had raised kitchen garden by planting rearing Casuarina, Eucalyptus trees. There is a Kattukaruvel tree fence. The suit property in its entirety was the subject to partition between the plaintiffs in a partition suit O.S.No.3 of 1971 on the file of Subordinate Judge, Sivaganga as item 34 of A schedule. In the course of final decree, this item was partitioned as plots A, B, C and D and allotted respectively to the plaintiffs. Even after the final decree proceedings for the sake of convenience and due to family circumstances, the property is kept in common enjoyment of the plaintiffs without actually taking possession of the respective plot.

(3.) The third plaintiff had mortgaged and dealt with his undivided share by document dated 18.9.67. The second plaintiff's father Arumugam had also similarly dealt with his undivided share under a mortgage deed dated 12.5.72. The third plaintiff, after the partition in the final decree in O.S.No.3 of 1971, has sold a portion of share allotted to him to the 2nd defendant. Thus, with the partition within the entire property, the entire property belongs to the plaintiffs and the second defendant.