T PANCHAPAKESAN Vs. PERIA THAMBI NAICKER

JUDGEMENT

(1.) THIS first defendant in O. S. No. 70 of 1960 on the file of the Subordinate judge's court, Chingleput, is the appellant. The eleven plaintiffs-respondents instituted the suit for a declaration that they are entitled to certain plots marked in the plaint plan and situated in S. No. 140 of Selayur village and for consequential permanent injunction restraining defendants 1, 9 and 10, from interfering with their possession of the said plots, or in the alternative, for partition and separate possession of 18/32 shares. The land in question measures 2. 82 acres. It was originally a carpenter inam. It was resumed by the Government on 17-12-1935, and the Collector of Chingleput appears to have passed an order and issued patta in respect of this land. The terms of the order are not known as it is not produced. The plaintiffs claimed that on 21-7-1950, at a gathering of the mirasidars of the village, a partition was effected, that at that partition the plots mentioned by them were allotted to their shares and therefore they were entitled to the main relief of declaration of their title to the said plots and for the consequential injunction against defendants 1, 9 and 10, who are said to be alleged that they were in joint possession and in any event deemed in law to be in joint possession with the other sharers.

(2.) THE first defendant claimed to have purchased the entire suit property in court auction in execution of a mortgage decree in O. S. No. 14 of l1953 on the file of the District Munsif court, Poonamalle. That was a suit instituted by the second defendant on a mortgage, a copy of which is Ex. A-1, dated 15-10-1952. That was executed by 15 villagers in favor of the second defendant for a sum of Rs. 3,500/ -. The case of the first defendant was that the said mortgage was executed for the purpose of meeting the expenses in connection with a litigation instituted by a third party and that the villagers had to borrow the sum from the second defendant for the purpose of meeting the expenses and that therefore the mortgage was binding upon the entire villagers. That mortgage suit was instituted against the villagers under Order 1, Rule 8, Civil Procedure Code. It was in execution of that decree the first defendant happened to become the court auction purchaser. The first defendant contended that after resumption, the land was granted in patta not only in favor of the mirasdars but in favor of the entire body of villagers. The main defense of the first defendant was that on account of the court sale the plaintiffs had no subsisting title.

(3.) ON a consideration of the evidence the trial Judge found that the mirasidars of the village alone were entitled to the suit land and that the decree in the mortgage suit in which the first defendant claimed to have become the court auction purchaser was not valid and binding upon the plaintiffs inasmuch as they were not parties to the mortgage suit and that therefore their right was not affected. The trial Judge further found that the partition arrangement set up by the plaintiffs was not made out, that the plaintiffs were not entitled to a decree for partition in the absence of the other persons entitled to shares in the land and that they were entitled only to a declaration of their right to be in joint possession with the first defendant and the other gramathars (Giramathargal) which term, according to the learned Judge, means only the mirasidars. It is against this decree that the first defendant has filed this appeal.