KARUPPANNA UDAYAR Vs. MUTHUSAMY

JUDGEMENT

(1.) THE unsuccessful plaintiffs in the court below are the appellants. THE plaintiffs are the husband and wife. Plaintiffs filed the suit for partition and separate possession claiming 7/18th share in the suit property, which is the agricultural punja lands to the extent of 3.31 acres situated in Ammani Kothanoor Village, Salem Taluk.

(2.) THE case of the plaintiffs is that the first plaintiff and the first defendant are brothers and they are the members of the joint family. According to the plaintiffs, the father of the first plaintiff and the first defendant, THEerappa Udayar purchased the suit property on 04.12.1945 from one Kulanthapillai, marked as Ex.A.1 . He settled one third undivided share in the suit property in favour of the plaintiffs on 03.04.1961 marked as Ex.A.4, which is a registered settlement deed. Another one-third undivided share was sold by THEerappa Udayar to one Vedaathal on 10.10.1957 marked as Ex.A.2, which according to the parties contain a clause for reconveyance. THE said Ex.A.2 was executed by THEerappa Udayar along with the first defendant. THE first defendant has repurchased the same from Vedathaal under a sale deed dated 01.10.1964 marked as Ex.A.3, the original of which was marked on the side of the defendant as Ex.B.1. THE first defendant who has purchased the share under the said Ex.A.3 is stated to have sold the same to the 6th defendant, under a sale deed dated 31.08.1987 marked as Ex.A.5. In respect of the remaining one third undivided share, the father of the first plaintiff and first defendant THEerappa Udayar continued to be in possession till his death which was four years before the filing of the suit, the suit having been filed on 15.03.1988. THE said THEerappa Udayar's wife predeceased him and defendants 2 to 5 are the daughters of THEerappa Udayar.

(3.) ACCORDING to the 6th defendant he has not only purchased the one third specified share from the first defendant which was originally sold by Theerappa Udayar to Vedathaal and reconveyed in favour of the first defendant under Ex.A.3, he has also purchased the share of the first defendant and the shares of four daughters, namely, defendants 2 to 5 out of the remaining one third share of 1.10 acres left by Theerappa Udayar under a sale deed dated 07.09.1987 marked as Ex.A.6 original of which was marked as Ex.B.3 on the defendant's side. Therefore, according to the 6th defendant the said defendant has purchased the specified portion, while the plaintiffs have been given properties under the settlement deed and put in possession and therefore, the plaintiffs are not entitled to any partition with respect to 1.10 acres of land. ACCORDING to the 6th defendant there has been a partition earlier and daughters of Theerappa Udayar and the first defendant have already sold, their properties in favour of the 6th defendant, who is in possession. It is also the case of the 6th defendant that the suit is barred by rejudicata, in view of the decision in earlier suit filed by the plaintiffs in O.S.No.629 of 1987. On the basis of the above said pleadings the parties went to trial. The first plaintiff was examined as P.W.1 and on the side of the plaintiffs documents Exs.A.1 to A.10 were marked. On the side of the defendant's since defendants 1,7 and 8 have remained exparte and defendants 2 to 5 having filed a memo as stated above, have not chosen to appear and therefore they were set exparte only the 6th defendant has appeared and he was examined as D.W.1 apart from another witness on his side as D.W.2 and documents B.1 to B.10 were marked on the side of the 6th defendant.