CHELLAKKAL Vs. AMMANIAMMAL

JUDGEMENT

(1.) THIS Revision is directed against the order of Additional Subordinate Judge, Erode, made in I. A. No. 281 of 1999 in O. S. No. 50 of 1990 dated 09-04-1999, dismissing the Application filed under Or. 8 R. 9 C. P. C. , declining to receive the Additional Written Statement. The First Defendant is the Revision Petitioner.

(2.) THE relevant facts for disposal of these Revision Petitions could briefly be stated thus:-a) O. S. No. 50 of 1990:- The Plaintiffs are related as noted below:-<FRM>JUDGEMENT_1397_TLMAD0_2005Html1.htm</FRM> In the plaint, the Plaintiffs have alleged that their father Karuppan purchased common half share in the suit properties and he was in possession and enjoyment of the common half share till his death. The said Karuppan died intestate in the year 1961. After his death, the Plaintiffs became entitled to each 1/7th share. The First Defendant had purchased common half share in the suit properties. The First Defendant has obtained an usufructuary mortgage over the common 1/4th share from the Plaintiffs 4 and 7, which is said to have been discharged. By influencing the Revenue Officials, the First Defendant had obtained resurvey patta. There was no enquiry for resurvey and the resurvey proceedings, which was held behind the back of the Plaintiffs, is not binding on the Plaintiffs and the same would not confer any right over the First Defendant. The First Defendant had filed the vexatious suit in O. S. No. 10 of 1990 on the file of Subcourt, Erode, claiming that he is in possession and enjoyment of the suit properties, as the owner and as the cultivating tenant. The plaintiffs 4 and 7 have filed O. S. No. 199 of 1989 on the file of the D. M. C. , Erode, for declaration and permanent injunction and both the suits are pending. Inspite of repeated demands, the First Defendant has not come forward to effect amicable partition, hence, the Plaintiffs have filed the suit for partition and allotment of 12/28th shares to the Plaintiffs and for declaration that the resurvey of the suit properties in S. F. No. 827-F, is null and void and that it would not bind the Plaintiffs.

(3.) AGGRIEVED over the dismissal of the Application to receive Additional Written Statement, the First Defendant has preferred this Revision. The learned counsel for the Revision Petitioner has contended that by issuance of notice to the Plaintiffs 4 and 7, the nature of the suit is changed and an opportunity ought to have been given to file the Additional Written Statement. It is further submitted that after the filing of the suit, the property in R. S. No. 85/1 was sold by the Plaintiffs 1 to 3 to the 8th Plaintiff (who has been impleaded as a party to the suit as per the order in I. A. No. 1981 of 1991) and in view of the conclusion of the other suits in O. S. Nos. 42 of 1998 and 100 of 1995, an opportunity ought to have been given to the First Defendant to file the Additional Written Statement.