KANNA GOUNDER Vs. ARJUNA GOUNDER

JUDGEMENT

(1.) This second appeal is preferred against the judgment and decree, dated 25-4-1989, in A.S. No. 94 of 1987 passed by the Subordinate Judge, Tindivanam. The plaintiffs are the appellants in this second appeal.

(2.) Briefly, the case of the plaintiffs is thus. The suit properties belong to the joint family consisting of three brothers, namely, Abimanna Gounder, Subburaya Gounder and Chinnaraju Gounder and all of them died. The plaintiffs are the sons of Abimanna Gounder. Defendant is the only son of Chinnaraju Gounder. Subbaraya Gounder had no male issues. The first item of the suit property is ancestral and the second item has been purchased by the plaintiffs father Abimanna Gounder as manager of the joint family. Both the items are enjoyed commonly as a single item, consisting of a country tiled house and thottam. The plaintiffs have 1/3rd undivided share in the suit items. Besides, the l/3rd share belong to Subbaraya Gounder has been gifted to plaintiffs by his legal representatives under Settlement Deeds, dated 1-3-1980 and 6-4-1981. The settlement has been duly accepted and thus the plaintiffs are entitled to 2/3rd share in the suit items and the remaining 1 /3rd belong to the defendant. The defendant started giving trouble to the plaintiffs and he is making arrangements from 6-8-1983 to make changes in the physical features of the suit properties. The plaintiffs suggested partition and separate possession, but the defendant did not come forward. It is no longer possible for the plaintiffs to have joint ownership of the suit items along with the defendant and the suit is filed to effect partition of the suit items and for allotment of 2/3rd share to the plaintiffs with future mesne profits.

(3.) The defendant in his written statement contended as follows. It is true that item No. 1 was the ancestral property and item No. 2 was purchased for the benefit of the joint family. The averment in the plaintiff that l/3rd share of Subburaya Gounder was gifted by his legal representatives to the plaintiffs under two registered settlement deeds, dated 1-3-1980 and 6-4-1981 is denied. The truth, due execution and attestation of the settlement deeds are denied. The settlement deeds were never accepted and acted upon. The settlors have no right or interest in the suit properties and they cannot convey the alleged share of Subburaya Gounder. The plaintiffs cannot derive right under settlement deeds. The defendant and his father have been in exclusive possession and enjoyment of the portions MAK and DKLM, the room on the northern side of it. There was no objection on the side of the plaintiffs for the enjoyment of the defendant and his father. The defendant and his ancestors prescribed title to the western portion of the house by ouster also. The plaintiffs, even if they had any title, it was extinguished by non-user for more than the statutory period. There was dispute among the plaintiffs and the defendant in respect of enjoyment of the house and it ended in criminal cases. Panchayatdars, namely, Chinnaraj Pillai, Munuswamy Gounder, Manicka Gounder and Periaswamy Naicker intervened to settle the dispute and it was agreed in the panchayat that the defendant should take the room DKLM in the Commissioners Report and also the room on the north of it along with the portions on the eastern and western sides of the two rooms exclusively and the defendant should lay a wall along the wall of northern room and also provide entrance and he should pay the plaintiffs a sum of Rs. 150/-. It was decided and agreed that the plaintiffs should take the rearing northern portion with the existing entrances and they should receive Rs. 150/- from the defendant. The parties accepted and consented to the decision of the panchayatdars. The plaintiffs received a sum of Rs.150/- in the presence of Panchayatdars and hence it is not open to them to allege that the suit properties continued to be joint. The defendant has been in possession and enjoyment of the western portion along with the vacant site. Defendant has not done anything to alter the structure or physical features of the suit properties. The plaintiffs are not entitled to claim partition as they have been in enjoyment of separate and distinct portions.