R. PRAKASH Vs. V. CHINNADURAI AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No. 51 of 2007 on the file of the learned Principal District Munsif, Cuddalore is the appellant herein. The said suit was filed for declaration of title and for permanent injunction against the defendants 1 and 2 from in any manner interfering with his alleged peaceful possession and enjoyment of the suit property; for permanent injunction against the third defendant from registering any sale deed executed by the first defendant in respect of the suit properties and also for permanent injunction to restrain the second defendant from interfering with his peaceful possession and enjoyment of the fifth Item of the suit properties. The learned Principal District Munsif, by decree and judgement dated 08.12.2010 dismissed the suit. As against the same, the appellant filed an appeal in A.S. No. 78 of 2011 on the file of the learned II Additional Subordinate Judge, Cuddalore. The said appeal was dismissed on 05.11.2013 thereby confirming the decree and judgement of the trial Court. Challenging the same, the appellant is before this Court with this second appeal.

(2.) THIS second appeal has come up today for admission. I have heard the learned counsel for the appellants and I have also perused the records carefully.

(3.) IN the written statement, the first defendant admitted the relationship between the parties. But, according to the him, an oral partition was taken place in the year 1969 itself. Even at that time, all the 5 sons of Mr. Veerapa Padayachi were adults. Some of the separate properties of the first defendant were also put into the joint family hotchpot and they were also divided by means of oral partition. In the said partition, the suit Item No. 6 was allotted to the first defendant. In the year 1972, he mortgaged the said property with the Land Development Bank, Cuddalore. At that time, since, there was no documentary proof to prove the oral partition which took place in the year 1969 itself, the Bank Authorities wanted statements from the joint family members admitting the execution of oral partition and no objection for grant of loan to the first defendant. In that, all the members of the family including the plaintiff's father gave statement admitting the oral partition which took place in the year 1969 itself. In that mortgage, the suit Item No. 6 was also one of the items. It is the further contention that Item Nos. 1 to 5 and 7 of the suit properties were all purchased by the first defendant out of his own funds that too after the above oral partition of the year 1969.