JAYAMOORTHY Vs. PALANI

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Tindivanam dated 10.09.2009 made in A.S. No. 32/1995 on the file of the Sub Court, Tindivanam. Palani, the first respondent in the second appeal filed the suit O.S. No. 607/1989 on the file of the Court of District Munsif, Tindivanam for partition, separate possession and for mesne profits against 1) Thirumal, 2) Rasu and 3) Jayamoorthy (the first appellant in the second appeal) ranking them as defendants 1 to 3 respectively. The suit was dismissed with cost by the trial court by its judgment and decree dated 31.03.1995. As against the same, the plaintiff Palani (first respondent in the second appeal) filed A.S. No. 32/1995 on the file of the Sub Court, Tindivanam. The learned Additional Subordinate Judge, Tindivanam by the impugned judgment and decree dated 10.09.2009 allowed the appeal, set aside the decree of the trial court dismissing the suit and granted a preliminary decree for partition holding that the plaintiff was entitled to 1/3 share in the suit properties and directing division of the suit property in to three equal shares and allotment of one such share to the plaintiff/first respondent in the second appeal. The learned Additional Subordinate Judge, Tindivanam relegated the decision regarding mesne profits to a separate enquiry to be conducted on an application to be filed for the said purpose. During the pendency of the first appeal before the lower appellate court, Kaliammal and Kalyani (the appellant 2 and 3 in the second appeal), one Alamelu and the respondents 2 to 7 in the appeal were impleaded as respondents 4 to 12 in the first appeal before the lower appellate court. Now the first appellant in the second appeal (3rd defendant) and the appellants 2 and 3 in the second appeal (respondents 4 and 5 in the first appeal) have filed the present second appeal challenging the decree of the lower appellate court dated 10.09.2009 made in the above said appeal suit A.S. No. 32 of 1995.

(2.) Palani, the first respondent herein filed the suit making the following averments in the plaint:

(3.) Thirumal, the first defendant remained ex-parte and he did not file any written statement. The second defendant Rasu and his son Jayamoorthy (3rd defendant/first appellant in the second appeal) filed separate written statements containing similar averments and contested the suit. The averments made in their written statements in brief are as follows: