BALACHANDRAN Vs. KRISHNAVENIAMMAL

JUDGEMENT

(1.) The concurrent Judgments and decrees passed in O.S.No.255 of 2012 by the Sub-Court, Vedasunthur and in A.S.No.18 of 2016 by the Additional District Court, Dindigul, are being challenged in the present Second Appeal.

(2.) The appellants / plaintiffs have instituted a suit in O.S.No.255 of 2012, on the file of the trial Court for the relief of declaration and partition, wherein, the present respondents have been shown as defendants 1 to 4.

(3.) It is the case of the plaintiffs that the suit property was originally belonged to one Rajammal, through a registered sale deed, dtd. 19/4/1954. After her death, her daughter Muthulakshmi had sold the suit property to one Sundararajan Naidu and his two sons, namely, Kondalrajan and Alagarsamy, under a registered sale deed, dtd. 27/4/1960. While-so, the said Sundararajan had died leaving behind his two sons. Kodalrajan died in the year 1967 and Alagarsamy died in the year 1972. The plaintiffs 1 to 3 are the sons of Kondalrajan and the fourth plaintiff is the wife of Kondalrajan and they are the legal heirs of Kondalrajan. The first defendant is the wife of Alagarsamy and the second defendant is the daughter of Alagarsamy. After the death of Kondalrajan and Alagarsamy, the plaintiffs and the defendants 1 and 2 inherited the suit property and enjoyed the same. The plaintiffs and the defendants 1 and 2 are entitled to half share each. As the said land is a barren land, the plaintiffs and the defendants 1 and 2 wanted to partition the property among themselves and they agreed for division of the suit property. The defendants 1 and 2 did not assign any reason for diving the same. Hence, the plaintiffs decided to initiate legal action. The suit property is a very meagre extent and it has not derived any income. While-so, the third defendant attempted to damage the fencing in the suit property, so as to cover the suit property with the mill building, but it was objected by the plaintiffs. The third defendant, from the year 2008, demanded the plaintiffs to sell the suit property to them, but the defendants 1 and 2 were not ready and willing to sell the suit property. Hence, the plaintiffs decided to file a suit for partition before the trial Court. When the first plaintiff had applied for a certified copy of the patta extract of the suit property, in the month of September, 2011, he came to know that the patta for the suit property had been transferred to the name of the third defendant. Hence, the plaintiffs filed the suit stating that either their father Kondalrajan or the husband of the first defendant had not executed any sale deed in respect of the suit property, as they are the owners of the suit property. The alleged sale deed was not acted upon and the third defendant had never taken possession of the suit property and he never enjoyed the same and the original sale deed is available with the plaintiffs and it has been filed along with the suit. The third defendant cannot claim any right over the suit property. The plaintiffs came to know that while mortgaging the adjacent properties, the third defendant has mortgaged the suit property also in favour of the fourth defendant-Bank. The alleged mortgage is not valid and it is not binding on the plaintiffs. The third defendant had created a cloud on the title to the plaintiffs. To avoid multiplicity of proceedings and to avoid technical objection that may be raised by them during the course of execution of the partition decree that may be passed in the above suit, the defendants 3 and 4 have also been impleaded as parties in the above suit and the relief of declaration of title over the suit property was against the defendants 3 and 4. Hence, the plaintiffs have filed the suit.