P RAJU Vs. V ATHILAKSHMI; M MANGAYARKARASI

JUDGEMENT

(1.) This Second Appeal is directed against the Judgment and Decree dated 15.02.2002, made in A.S.No.93 of 2001, on the file of Additional Sub Court, Kumbakonam, confirming the judgment and decree dated 29.06.2001, made in O.S.No.68 of 1999 on the file of Principal District Munsif Court, Kumbakonam.

(2.) The case of the appellant, who is the plaintiff in O.S.No.68 of 1999, as culled out from the plaint, for the purpose of disposal of the Second Appeal, is as follows:-

(3.) The first respondent, as first defendant, filed a Written Statement stating that the first respondent and her daughter Padmavathy are the owners of the property in Old.S.No.311/22, New S.No.343/19, having an extent of 4186 square feet and Old S.No.311/19A, New S.No.343/21, having an extent of 5406 square feet, by way of partition effected between Kuppusamy Chettiar, Govindaraj Chettiar, Athilakshmi and Padmavathy, on 25.10.1964. They were in possession and enjoyment of the said property. They entered into a sale agreement in respect of the above vacant site on 13.05.1993 with the appellant for a sum of Rs.70,000/-. The first respondent received a sum of Rs.15,000/- as advance. She did not receive the full satisfaction of the claim. She accepted to receive the balance amount of Rs.55,000/- at the time of registration of sale. As mentioned in the plaint, on 13.05.1993, the possession of the property was not handed over to the appellant, as per the sale agreement. Since the terms of the sale agreement were not complied with, the same was cancelled subsequently and it was barred by limitation also. Subsequent to the cancellation of sale agreement dated 13.05.1993, they executed a sale deed in favour of the second respondent, pursuant to which, the second respondent was in possession and enjoyment of the property from 11.02.1999. The construction of tiled house, as averred in the plaint, is not the one constructed in the suit property. The suit is not maintainable for non-joinder of necessary party, since Padmavathy, the daughter of the first respondent, was not arrayed as party-defendant in the suit. Thus, the suit, as filed by the plaintiff, is not maintainable.