SAMBANDA MUDALIAR Vs. VAIDYANATHAN

JUDGEMENT

(1.) THE appeal is against the decree for partition granted by the trial Court.

(2.) THE suit was filed by the respondents herein for declaration of their title and for permanent injunction or for the relief of partition. THE respondents are the children of one Gnanasambanda Mudaliar. Gnanasambandam's grandfather Palanivel had a brother called Chockalingam. Palanivel predeceased Chockalingam leaving behind two sons Narayanasamy and Manickam. THE family possessed large extent of ancestral properties. On 21.7.1912, by a registered deed, Ex.A-1, dated 21.7.1912, the properties were partitioned. "A" schedule property fell to the share of Chockalingam and his sons. "B" schedule property were allotted to Narayanasamy and his brother Manickam who was then a minor. Under this document, the property in Survey No.67 was divided in such a way that the north-western and south-eastern quarters were allotted to Chockalingam and the north-eastern and south-western quarters were allotted to Narayanasamy and Manickam. THE plaint refers to Chockalingam's share as "A" schedule and the other share as "B" schedule. It is averred in the plaint that this extent which was originally 3.10 acres was reduced to 2.72 acres. Subsequently, Narayanasamy and Manickam executed a registered partition deed on 5.4.1933 Ex.A-39 and the whole of "A" schedule property went to Manickam. Manickam sold the property on 11.9.1940 by Ex.A-2 and his property was purchased by Narayanasamy under Ex.A-3 dated 9.2.1950. Narayanasamy died in 1965 and therefore, the respondents became entitled to the whole of the said property. Chockalingam's share was sold in Court auction and purchased by the appellant's father. THEre was no delivery pursuant to the Court auction and in any event, the Court sale can only bind the right, title and interest of the judgment-debtor which is 1.36 acres as reduced subsequently. This property though a patta land was always used as a house site. Gnanasambanda and before him, his father constructed thatched huts and let them on rent. THE entire extent was one block. THEre are no visible demarcations. In the resettlement proceedings in 1976, the properties were converted from acres to hectares and are now comprised in three patta numbers in the joint name of the respondents" father, the appellant and S.K. Velayudha Mudaliar. THE respondent's father is alone paying the k1st and house tax. THE appellant has no right in "A" schedule property and is not entitled to any extent more than Chockalingam's share. THE appellant is aware of the same and he has also treated the property as if it is joint with the respondents and even in the partition amongst the appellant and his sons dated 29.12.1971, only the half share in the entire extent has been dealt with. Now, the respondents and their father have divided the properties by a registered partition deed on 5.11.1978 and the suit property was allotted to the share of the respondents. Since the appellant attempted to trespass into the south-western portion of the suit property and since he prevented the respondents from demarcating the property properly with the aid of a surveyor, the suit was filed. This is brief, is the case of the respondents as per the plaint.

(3.) THE suit properties as described in the plaint are situated in Kurinchipadi village under Survey number and extent as follows: