KARUPPATHAL Vs. NATESAN

JUDGEMENT

(1.) THE legal heirs of the original plaintiff Kannaiyan (since deceased), who figured as plaintiffs 2 to 6 in the suit, are the appellants in the second appeal. The suit O.S.No.454 of 1989 was filed by Kannaiyan, claiming to be entitled to 1/3rd undivided share in the suit properties, for the relief of partition and separate possession. Since Kanniyan died after the filing of the suit, Karuppathal, Kannammal, Saroja, Dhanalakshmi and Jayalakshmi, the appellants herein (plaintiffs 2 to 6) got impleaded.

(2.) THE suit was resisted by Natesan (died after the filing of the second appeal), the first respondent /first defendant and Kondammal, the 7th respondent herein/7th defendant. After trial, the learned trial Judge, namely II Additional District Munsif, Erode decreed the suit and granted a preliminary decree for partition directing division of the suit properties into three equal shares and allotment of one such share to the appellants herein/plaintiffs. Aggrieved by and challenging the preliminary decree dated 10.03.1994 passed by the trial Court, Natesan, the first respondent herein/first defendant alone preferred an appeal on the file of the Sub-Court, Erode in A.S.No.50 of 1994. The learned First Additional Sub-ordinate Judge, Erode, after hearing the appeal, by judgment and decree dated 24.02.1995, allowed the same, set aside the preliminary decree passed by the trial Court and dismissed the suit for partition and separate possession. The said decree passed by the lower appellate Court is challenged in the present second appeal.

(3.) THE case of the appellants/plaintiffs, in brief, as reflected in the averments found in the plaint, is as follows: