KARUPPANNA GOUNDER Vs. PALANIAMMAL; SIVAKUMAR

JUDGEMENT

(1.) The defendant in a suit for partition and delivery of possession, has filed this Second Appeal challenging the judgment and decree dated 23.12.2004 passed by the learned Subordinate Judge, Namakkal, in A.S. No. 251 of 1997 wherein and by which the judgment and decree dated 30.04.1997 passed by the learned District Munsif - cum - Judicial Magistrate, Paramathi, in O.S. No. 236 of 1996 granting decree for partition, was confirmed.

(2.) The plaintiff / sole respondent herein filed O.S. No. 236 of 1996 seeking to appoint Commissioner and divide the 'B' Schedule properties into two equal shares and all such shares separately and for delivery of possession.

(3.) A brief narration of facts necessary for appreciating the contentions raised herein may be set out. According to the plaintiff, he purchased the 'A' schedule property, which is a part of 'B' schedule property, from one Sankarandi Gounder, brother of the defendant, by virtue of sale deed dated 08.11.1989. It is averred that since there was no partition previously, the defendant had issued notice to the plaintiff even prior to the purchase claiming half share in 'B' schedule properties for which the plaintiff gave a suitable reply. While so, after purchase of the property, the plaintiff filed a suit O.S. No. 283 of 1990 before the Court of District Munsif, Namakkal, for declaration and permanent injunction against the defendant and the same was dismissed with an observation that the plaintiff can file a suit for partition. Accordingly, the plaintiff issued a notice to the defendant on 24.02.1992 for partition of the suit property for which the defendant sent a reply with certain allegations. Based on the strength of the judgment in the earlier suit, the plaintiff filed O.S. No. 236 of 1996.