VAIDIYANATHAN Vs. SAMBANDA MUDALIAR

JUDGEMENT

(1.) (Appeal filed under Clause 15 of the Letters Patent against the judgment of the learned single Judge dated 14.2.2002 in A.S.No.810 of 1987 allowing the appeal filed against the judgment and decree dated 30.4.1987 in O.S.No.45 of 1985, on the file of Sub Court, Cuddalore.) Plaintiffs are the appellants against the reversing judgment.

(2.) THE suit was filed for declaration that 'A' schedule property exclusively belongs to the plaintiffs or in alternative for partition of half share in 'B' schedule property of which 'A' schedule is a part. According to the plaintiffs' case, the properties originally belonged to two brothers, Palanivel and Chockalingam. Palanivel had two sons Narayanasamy and Manickam. THE plaintiffs are the grandsons of Narayanasamy, being the son of Gnanasambandam. On 21.7.1912, in a partition, the properties described in 'A' schedule were allotted to Chockalingam and the properties described in 'B' schedule of the same document were allotted to Narayanasamy and Manickam, two sons of Palanivel. Out of 310 acres comprised in Survey No.67, which was dealt with in partition, after sale of certain portions, the total extent was reduced to 2.72 acres and in resettlement proceedings in 1922, the properties had been allotted and enjoyed by Narayanasamy and Manickam. On 5.4.1933, in a partition, 'A' schedule property was allotted to the share of Manickam as per Ex.A-39. THE said property was sold by Manickam to one Appar Mudaliar on 11.9.1940 as per Ex.A-2. On 26.2.1942, the property purchased by Appar Mudaliar was sold in favour of Sambanda Mudaliar of Naduveerapattu (A petition for accepting such document dated 26.2.1942 as additional evidence has been filed in the present appeal). On 9.2.1950, the property purchased by Sambanda Mudaliar was sold to Narayanasamy as per Ex.A-3. After the death of Narayanasamy in 1965, the plaintiffs' branch entitled to whole of the said property. Chockalingam's share was sold in court auction and had been purchased by defendant's father. THEre was no delivery of possession pursuant to the court auction sale and at any rate the court's sale could confer right, title and interest of the judgment debtor, namely, Chockalingam's half interest, which was 1.36 acres, out of 2.72 acres recorded in the resettlement. This property was always used as house-site and there were no demarcation. In resettlement proceedings in 1976, the properties were converted from acres to hectares and now comprised in three patta numbers in the joint name of plaintiffs' father Sambanda Mudaliar and S.K. Velayudha Mudaliar. THE plaintiffs' father was paying kist and house tax and the defendant has no right in 'A' schedule property and he is not entitled to any extent more than the Chockalingam's share. THE defendant had also treated such property as if a joint family property of the defendant and the plaintiffs and in the partition among the defendant and his son only half share of the entire extent had been dealt with. On 5.11.1978, in a partition in the family of plaintiffs and their father, the suit property had been allotted to the share of the plaintiffs. Since the defendant attempted to trespass into South Western portion of the suit property and prevented the plaintiffs from demarcating, the suit had been filed for the reliefs claimed.

(3.) LEARNED single Judge has concluded that in the earlier litigations filed by third parties in respect of the entire property, the father of the plaintiff, who was a co-defendant along with the father of the present defendant, had either pleaded or given evidence to the effect that the entire property was purchased by the father of the defendant in court auction and the father of the defendant was in possession. Such disputes were decided by upholding the title of the father of the defendant and therefore by operation of principle of res judicata as well as estoppel, it can be said that the defendant and his father had right over the property and the plaintiff did not have any right. It is also found that the defendant and his father had remained in an uninterrupted possession and the defendant and his father had been asserting their right continuously and openly from 1933 onwards and unless the plaintiffs prove that they got possession subsequently, they cannot succeed and even if they had title, such title had been defeated by long adverse possession by the defendant.