THANGAMMAL Vs. PAPATHI

JUDGEMENT

(1.) DEFENDANTS 1 to 3 in O. S. No. 18 of 1987, a suit for partition, on the file of the Subordinate Judge, Nagapattinam, have filed this second appeal aggrieved by the concurrent findings of the Courts below.

(2.) APPELLANTS herein are defendants 1 to 3 and respondents 1 and 2 are Plaintiffs in the suit.

(3.) THE brief facts giving rise to filing of the original suit are as follows: (a) The suit property to the extent of 16 cents in S. No. 12/5 in velankanni Village originally belonged to the family of one Pitchaikannu, predecessor of the plaintiffs. He had two sons by name Arumainathan and manickam. Arumainathan had one son by name Sebastian (since dead) and two daughters Papathi and Anthoniammal, who are plaintiffs herein. The wife of sebastian by name Thangammal, daughter Santhanamary and son Arokiasamy are defendants 1 to 3 in the suit. (b) The other son of Pitchaikannu by name Manickam had three sons and two daughters and one of the son by name Santhanasamy is 4th defendant. The legal representatives of another son of Manickam by name Periyanayagasamy, are defendants 6 to 9. The wife and two sons and two daughters of theethriyasamy, another son of Manickam are defendants 10 to 14. (c) The case of the plaintiffs is that Arumainathan and Manickam possessed 8 cents each in the suit property and there was no division between them during their lifetime. As there was an attempt by the heirs of Manickam to oust the branch of Arumainathan, the legal heirs of Arumainathan including the plaintiff, filed a suit in O. S. No. 62 of 1981 on the file of the District munsif, Nagapattinam, for partition of their half share in the suit property and in that a preliminary decree was passed on 10. 3. 1982 as prayed for. The appeal filed against the said decree was dismissed and hence the said preliminary decree became final. According to the plaintiffs, as it was felt that the matter could be amicably settled, no final decree application was filed. It is the further case of the plaintiffs that taking advantage of the plaintiffs not having obtained the final decree, defendants 1 to 14 are attempting to sell the whole suit property in favour of 16 th defendant, who has interest in the property. As the defendants 1 to 3 are denying the lawful right of the plaintiffs in the suit property, the plaintiffs have filed the suit. (d) In the written statement filed by defendants 1 to 3, they admit that a preliminary decree was passed in O. S. No. 62 of 1981 and the appeal preferred against the same in A. S. No. 61 of 1982 was also dismissed. The contention of these defendants is that the plaintiffs should have worked out their remedy in that suit itself by filing final decree application and they should not have filed the present suit. It is also contended that the suit property in O. S. No. 62 of 1981 has been valued at Rs. 4,800/-, whereas, the same suit property has been valued at Rs. 48,000/- in the present suit. The defendants also dispute the relationship of the plaintiffs in that, arumainathan had only one son by name Sebastian and the plaintiffs are only adopted daughters. The defendants also dispute that the plaintiffs are not in joint possession of the suit property with these defendants. (e) Defendants 4 to 14 and 16 have filed a separate written statement. According to these defendants, as the legal heirs of Arumainathan and Manickam orally divided their respective shares in the property, no final decree petition was filed in O. S. No. 62 of 1981. As per the said partition, 8 cents in the northern portion was allotted to the legal heirs of Arumainathan and 8 cents of southern portion was allotted to the legal heirs of Manickam and since then they were enjoying their respective portions, by putting fence in between. The 16th defendant purchased the southern portion of 8 cents from the legal heirs of Manickam on 29. 1. 1987 for valid consideration. Hence even assuming the plaintiffs are entitled to 2/3rd share, it is only in the northern portion of 8 cents and not in the entire 16 cents.