RAJENDRAN Vs. CHINNATHAMBI GOUNDER

JUDGEMENT

(1.) (Prayer: Second Appeal against the Judgment and decree of the court of the Subordinate Judge, Trichy in A.S.No.32 of 1994 and dated 27.07.1994 in confirming the judgment and decree in O.S.No.917 of 1983 and dated 29.10.1993 is even otherwise, illegal, incompetant, without jurisdiction.) The unsuccessful second plaintiff, is the appellant in the Second Appeal. The appellant and his father (late) Kapoor Gounder have filed the suit for declaration and permanent injunction in respect of the property to the extent of 1.32 acres, which is Eastern part of total extent of 2.73 acres comprised in dry Survey No.440/3 Paramanantham Village, Chengam, Tiruvannamalai District, including the entire well situated in the land.

(2.) THE case of the plaintiffs was that the first plaintiff Kapoor Gounder, Raman, Chinnathambi, who is the first defendant and Chinnaraj Gounder were the sons of Kullu Gounder. THE first plaintiff, namely, the father of the appellant has got separated from joint family in 1959 and got his share under a oral partition between brothers, in which the first plaintiff was allotted 1.73 acres of land and the remaining three brothers have been jointly living. THE first plaintiff has also executed a release deed on 12.08.1959 marked as Ex.A.1 in favour of his father Kullu Gounder and other brothers. It is the case of the plaintiff that the said Kulla Gounder and three brothers of the first plaintiff have partitioned among themselves orally in 1971 and one of the brother Chinnaraj Gounder has executed a release deed in favour of his brother Raman on 29.10.1971 marked as Ex.A.8 and ultimately the first defendant has become a divided brother much after the partition and allotment of share to the first plaintiff.

(3.) THE Trial Court has also found that any admission made or a statement given by the first defendant in another suit in O.S.No.787 of 1984 marked as Ex.A.29, cannot itself be sufficient unless the plaintiff proves his case independently. It was also found that under Section 8 of the Transfer of Property Act, when once the property has been transferred, which includes all those which are appurtenant to the same and therefore, the suit well also to be deemed to have been transferred to the first defendant and in that view of the matter, the suit was dismissed. In the mean time, since the first plaintiff died the second plaintiff being his son has filed the appeal and the Appellate Court has also after elaborately discussing the entire issues involved has dismissed the appeal by confirming the decree and judgment of the Lower Court. It is as against the said concurrent finding, the second plaintiff has filed the present Second Appeal.