CHINNAPPAN Vs. ROSEMARY

JUDGEMENT

(1.) THE third defendant in the original suit O.S.No.251 of 2002 on the file of the Principal District Munisf, Cuddalore is the appellant in the second appeal. The said suit was filed by one Isac for declaration of his title and injunction in respect of the suit property viz., 26 cents out of 39 cents of dry land comprised in new Survey No.212/14 (Old Survey No.625/6) in Serakuppam Village, Cuddalore Taluk against one Anthony (first defendant, who is no more) and his brothers Michael and Chinnappan and a deceased brother's son Arokiadoss. As the said Anthony died during the pendency of the suit, his legal heirs were impleaded as defendants 5 and 6. The plaintiff Isac also died during the pendency of the suit. Hence his legal heirs were impleaded as plaintiffs 2 to 7. For the sake of convenience and better appreciation, the parties are referred to in accordance with their ranks in the original suit and at appropriate places their ranks in the second appeal shall also be indicated.

(2.) THE plaintiffs claimed their title to the suit property by tracing in the following manner: The suit property along with other items originally belonged to one Bilavendran, the father of the first plaintiff Isac. He sold it to one Appavu under a registered sale deed dated 16.12.1928. The said Appavu in turn sold it to Isac, the deceased first plaintiff under a registered sale deed dated 13.09.1934, in which he was represented by his grandmother Manickamammal as he was then a minor. After the death of Manickammal, Isac's mother took possession of the suit property on behalf of Isac and on his attaining majority, he took possession of the property and was in enjoyment.

(3.) THE suit was resisted by the defendants denying the plaintiff's averments that the suit property originally belonged to the plaintiff's father Bilavendran and he sold it to plaintiff's grandfather Appavu. It was further contended in the written statement that the suit property was never in the possession of the deceased first plaintiff or the other plaintiffs or their predecessors in title at any point of time and that on the other hand, the suit property and the western portion measuring 13 cents constituting the total extent of 39 cents originally belonged to Pichammal W/o Mudiappan, who was the mother of defendants 1 to 3; that the said pichammal sold the same to another Pichammal W/o. David on 23.07.1958; that the said Pichammal, W/o.David in turn sold it to one Balakrishnan Naidu on 03.07.1964; that the said Balakrishnan Naid sold it to Anthony, the deceased first defendant under a registered sale deed dated 11.05.1966; that though the property was purchased in the name of the deceased first defendant Anthony, it was treated by him and his brothers as their family property and hence, D1 to D3 along with D4 divided the family properties under a registered partition deed dated 25.05.1979; that in the said partition, 39 cents were divided among Michael, Chinappan and Arokiadoss (defendants 2 to 4), in which Michael was given 19 cents and Anthony was given 19 cents and that they got possession of respective shares and they were in possession and enjoyment of the same as per the partition. It was also contended that revenue records stood in the name of defendants 1, 2 and 4 and patta had also been issued in their names and that they were cultivating the lands for 10 years prior to the filing of the suit. Based on the said averments they had prayed for dismissal of the suit. The said written statement was filed by the 4th defendant Arokiadoss and other defendants had adopted the same. The following issues were framed by the trial Court: