N MANI Vs. ANANDAYEE AMMAL

JUDGEMENT

(1.) The above Civil Miscellaneous Appeal is filed by the claimant in an application under Order XXI Rule 58 in E.A.No.56 of 2009 in E.P.No.154 of 1994 in O.S.No.235 of 1981 on the file of the Principal District Munsif, Gingee.

(2.) The appellant is the claim petitioner. It is stated that he is managing the suit properties in the capacity of 'Kartha'. The properties originally belonged to one Arunachala Gounder. His wife is Myli Ammal and the said Arunachala Gounder had four sons and three daughters. The respondents are wife and daughter of one of the sons of Arunachala Gounder, namely, Subramani. It is stated that on 22.08.1974, there was a partition between Myli Ammal, Ranganathan and Natarajan, who are the wife and sons respectively of Arunachala Gounder. As per the said partition, 'A' schedule property fell to the share of the second respondent, 'B' schedule property to the share of Natarajan and 'C' schedule property in favour of Myli Ammal and they have been enjoying it accordingly. The said 'B' schedule property has been managed and enjoyed by the claim petitioner, who is the son of Natarajan. While so, including all the properties, a suit in O.S.No.235 of 1981 was filed for partition by the respondents and a preliminary decree was passed on 01.10.1981 and a final decree was passed on 30.08.1991. The execution petition for delivery of possession was filed in E.P.No.154 of 1994, in which, the above claim petition was filed by the appellant.

(3.) The appellant had further stated that a suit in O.S.No.365 of 2002 for declaration and injunction, was filed by him and he obtained decree on 05.01.2005. Therefore, the claim petition has been filed under Order XXI Rule 58 C.P.C on the ground that the properties covered under the decree for partition, are not available and the decree obtained is not binding on the claim petitioner / appellant.