P.DORAIKANNU Vs. P.ISTALINGAM

JUDGEMENT

(1.) THE plaintiff in the original suit is the appellant in the present second appeal. The defendant in the original suit is the respondent in the second appeal. For the sake of convenience, the parties are referred to in accordance with their rankings in the suit.

(2.) THE plaintiff Doraikannu and the defendant Istalingam are brothers. Admittedly, they were the members of Undivided Hindu Joint family, which became disrupted in the year 1994. By a registered deed of Partition dated 12.09.1994, the plaintiff and the defendant effected a division of the properties, which they owned jointly as joint family properties. The said document was registered as document No.643 of 1994 on the file of the Sub Registrar, Tamal. It is also an admitted fact that the mother and daughter of the parties relinquished their shares in the properties of the family. In the said partition, a house and vacant site appurtenant to the house in entirety were allotted to the share of the defendant. In addition, he was also allotted an equal share in the agriculture land belonging to the family. The total extent of agriculture land was 4.50 acres. The plaintiff was allotted 2.25 acres, whereas the defendant was allotted 2.25 acres in the said agriculture land. Their shares were clearly demarcated with boundaries. No share was allotted to the plaintiff in the house property, which included the appurtenant land. The partition deed itself recited the value of the share allotted to the defendant to be Rs.7,18,810/- and the value of the share allotted to the plaintiff to be Rs.14,405/-. Apparently inequal shares came to be allotted in the above said partition. The plaintiff, who has approached the court, has not chosen to contend that the above said partition deed was brought into effect by fraud or other vitiating factors. On the other hand, the plaintiff chose to file the present suit for a bare injunction restraining the defendant from in any way selling or encumbering the suit properties, as if no division had taken place in respect of the suit properties. Both the house property and the landed properties, which were the subject matters of division under the above said partition, have been shown as items 1 and 2 respectively in the plaint schedule. The plaintiff has chosen to take a stand that though a division in respect of the properties came to be effected under the partition deed dated 12.09.1994, it was orally agreed between the parties that the defendant should pay half of the value of the house property to the plaintiff and till such payment was made, the plaintiff would be allowed to enjoy the entire agriculture land including the one allotted to the share of the defendant.

(3.) IN the trial court, the following issues were framed, based on which, the parties went for trial:-