SUBBAYAN Vs. SARASWATHI

JUDGEMENT

(1.) THE second defendant, who succeeded before the trial Court in O. S. No. 98 of 1990 on the file of the Court of Additional Sub-Judge, Cuddalore, and who lost his case before the first Appellate Court in A. S. No. 243 of 1991 on the file of the Court of Principal District Judge, Cuddalore, is the appellant in this second appeal.

(2.) THE parties are referred to as per their rankings in the suit.

(3.) THE respondents 1 to 4 as plaintiffs filed the suit for partition and separate possession stating that the suit property originally belonged to joint family consisting of three brothers, viz. , Pallandu, Parasuraman and Chinnaraju, who is the tenth defendant and it was purchased by their mother Amirthammal from one Velayutha Nattar as per sale deed dated 02. 7. 1924. The suit property was a vacant site and subsequent to the purchase, the said Amirthammal put up a hut and was residing with her family. On the death of their parents and after their marriage, the three brothers were in enjoyment of the suit property each by putting house separately for them without any division. The eastern property of the suit property, which also belonged to them, was brought in Court auction sale in execution of decree obtained against the three brothers in O. S. No. 124 of 1956 and in the Court auction sale held on 04. 12. 1970, one Arumuga Padayachi purchased the said eastern property and he took delivery of the same through Court and thereafter, he was in possession and enjoyment of the said property. Subsequently, he sold the same to the eleventh defendant Alamelu Ammal, wife of the tenth defendant, and after purchase, the tenth defendant, who is employed in Court, put up a house and is residing there. Parasuraman died leaving behind his wife, the first plaintiff and children, the plaintiffs 2 to 4 and twelfth defendant. The defendants 1 to 9 are the legal heirs of Pallandu. The second defendant is the manager of the family of Pallandu branch and he filed O. S. No. 827 of 1984 on the file of the Court of District Munsif, Cuddalore, claiming pathway right against the defendants 10 and 11 that they have got a right of pathway over the southern portion of the suit property. The second defendant also claimed 2/3rd share in the suit property stating that Parasuraman's 1/3rd share has been sold in Court auction in execution of decree in O. S. No. 465 of 1960 on the file of the Court of District Munsif, Cuddalore, in which one Arumuga Padayachi purchased the share of Parasuraman and in turn, the second defendant purchased the share of Parasuraman from Court auction purchaser under a sale deed dated 10. 02. 1984. There was no partition between the three brothers in 1960. It is admitted that the undivided 1/3rd share of Parasuraman was sold in Court auction on 14. 11. 1963. But, the Court auction purchaser did not take possession of the property and has also not obtained delivery through Court and as such, the right of the Court auction purchaser has become extinguished, since he has not taken delivery of the property within the prescribed period. Parasuraman, who was the predecessor of the plaintiffs, and his two brothers continued to be in possession of the suit property without any partition and after purchase, the second defendant constructed a house in the suit property and the second defendant has exceeded his 1/3rd share while constructing the said house. The plaintiffs, on enquiry of the tenth defendant, came to know about the previous litigation filed by the first defendant, viz. , the suit O. S. No. 827 of 1984 was decreed, against which the defendants 10 and 11 filed appeal in A. S. No. 174 of 1987 and the appeal was also dismissed. At the stage of appeal, evidence was let in to the effect that there was a partition among the three brothers. The plaintiffs were not bound by the decree since they were not parties to the suit and the defendants 1 to 9 were estopped from denying in respect of 1/3rd share of the plaintiffs. Since the twelfth defendant is residing away and is unable to join with the plaintiffs, he is impleaded as 12th defendant. Hence, the suit.