M RATINASAMY Vs. SAMPATH KUMAR

JUDGEMENT

(1.) THE plaintiff in O.S.No.229 of 2007 on the file of the Sub Court, Tiruppur is the appellant.THE plaintiff/appellant filed a suit for declaration and for injunction. THE case of the plaintiff was that 3.70 acres in S.No.78 and 4.47 acres in S.No.79 of Nallur village, belonged to Gurunatha Mudhaliar and his sons Muthusamy Mudhaliar and Manicka Mudhaliar, and Gurunatha Mudhaliar and his son Muthusamy Mudhaliar executed a mortgage deed dated 28.08.1913 in favour of Avinashi Achari and Viyapuri Achari and that mortgage was discharged by Muthusamy Mudhaliar and Manicka Mudhaliar by executing a sale deed dated 19.06.1918 in favour of the mortgagee Viyapuri Achari by selling the southern half share in S.No.78 and northern half share in S.No.79 and Muthusamy Mudhaliar and Manicka Mudhaliar retained the northern half share in S.No.78 and Southern half share in S.No.79 and they were in possession of the property. Manicka Mudhaliar died without any legal heirs and therefore Muthusamy Mudhaliar became the absolute owner of the property. After the death of Muthusamy Mudhaliar his son Murugappa Mudhaliar enjoyed the property and after him, his son Nachimuthu @ Natrayan was in enjoyment of the property and Nachimuthu @ Natrayan died intestate leaving behind his son Murugesan and wife Thangamani. From them, the plaintiff purchased 2.23 " acres in S.No.79 by a registered sale deed dated 05.11.2003 and 1.85 acres in S.No.78 by a sale deed dated 19.11.2003 and since then, he is in possession and enjoyment of the property. His possession and enjoyment was disturbed by the first defendant, who also filed a suit in O.S.No.576 of 2002 in respect of the same property and therefore the plaintiff/appellant filed a suit for partition and injunction.

(2.) THE defendants contested the suit stating that the plaintiff has no right, title and interest to the suit property and the third defendant filed a separate statement stating that Muthusamy Mudhaliar and Manicka Mudhaliar mortgaged the suit properties to one Subramani Chettiar and his mortgagee Subramani Chettiar filed a suit in O.S.No.35/1925 for realization of the mortgage amount and in E.P.No.539 of 1927 the mortgaged property was brought to sale and Subramania Chettiar purchased the properties and was put into possession and he thereafter sold the properties to Pongaiya gounder under sale deed dated 24.07.1933 and from the legal heirs of Pongaiya gounder, the third defendant purchased the suit properties by two sale deeds dated 15.05.1985 and 27.05.1985 and contended that the plaintiff is not in possession of the property and the third defendant is in possession of the property.

(3.) IT was argued by the learned counsel for the appellant that both the Courts without properly appreciating the documents filed by the appellant, namely, the sale deeds under which the appellant purchased the property from the legal heirs of Muthusamy Achari and Manicka Achari erred in holding that the plaintiff/ appellant has not proved his case. Learned counsel for the appellant further submitted that the learned Trial Judge erred in granting the relief of injunction in favour of the third respondent Sasikala, in the absence of the counter claim made by the third respondent/third defendant before the Trial Court and the Lower Appellate Court rightly set aside the decree of injunction granted in favour of the third defendant Sasikala holding that the third defendant failed to prove her title by producing the partition deed dated 16.07.1976 and in the absence of partition deed, the third defendant cannot claim title in the suit property. The learned counsel further submitted that cross objection or cross appeal can be filed only after service of notice of the second appeal on the respondent and in this case before the second appeal was admitted and notice was ordered, the cross objection was filed and that was also numbered and hence the cross objection filed by the third defendant is not maintainable in law and that has to be dismissed.