C S KUMARASWAMI GOUNDER Vs. ARAVAGIRI GOUNDER

JUDGEMENT

(1.) THE plaintiff in O. S. No. 59 of 1962 on the file of the court of the Subordinate judge of Erode is the appellant herein. The appellant and one Nallaswami Gounder were brothers, being the sons of one Sengoda Gounder. Between the appellant and Nallasami Gounder there was a partition of all the joint family properties on 24-11-1924 under a document market as Ex. B-1 in these p2roceedings. The document recited that with the help of mediators the properties of the joint family were divided as between them, that each of them took possession of the respective shares allotted to them and that from that day on wards one party had no right whatever to trespass into the property of the other. The properties themselves are divided into and described as to schedules, one schedule being allotted to each brother. There was one provision contained in the document, namely, that, if any of the parties went back on the partition arrangement, he would have to pay a sum of Rs. 5,000/- to the other. In 1932, Nallasami Gounder died and the first defendant in the suit is the only son Nallasami Gounder. The second defendant in the suit is a subsequent alienee of survey No. 122/b, which is item No. 2 in the schedule to the plaint. The present suit was instituted for partition of the properties that originally belonged to the appellant and the deceased Nallasami gounder. The case of the appellant as set out in the plaint was that the partition entered into between the parties on 24-11-1924 was not intended to be a final partition between the parties and that the agreement had always been treated as a matter of convenience subject to alteration between them. He also put forward the contention that a power had been reserved to ask for a repartition of the properties and that that itself was evidence of the fact that no final partition had been effected on 24-11-1924. He further contended that the parties themselves treated the properties as if they had not been finally partitioned, and, in support of that contention, relied on an order of the subordinate Judge, Coimbatore, in C. C. 434 of 1953 (O. P. 524 of 1953), relating to a claim to compensation in respect of acquisition of certain lands.

(2.) AS against this the first defendant filed a written statement putting forward the contention that the partition dated 24-11-1924 was a full and complete partition and that therefore the appellant had no right to go back upon the same. He also put forward an alternative contention that, in any event, he had acquired title to the properties allotted to the share of Nallasami Gounder under Ex. B-1, by adverse possession. With regard to the claim put forward by the appellant, that the order of the Subordinate Judge of Coimbatore in C. C. 434 of 1953 had decided that the appellant also had a share in the compensation amount, he contended that the said decision was not rendered on merits and to which he himself was not a party and that therefore it was not binding on him.

(3.) THE second defendant filed a separate written statement putting forward a similar contention, namely, that the partition dated 24-11-1924, was a complete and final partition, that pursuant to the partition the parties had taken possession of the respective items of properties allotted to them, that they had been in complete and absolute enjoyment of those properties, and that S. No. 122/b was dealt with by Nallasami Gounder pursuant to the partition, which had ultimately come to the second defendant after a series of alienations.