S.M. SUBBIAH Vs. P. PONRAM

JUDGEMENT

(1.) THIS appeal has been directed against the decree and Judgment in O.S.No.132 of 1983 on the file of the Court of Additional Subordinate Judge, Dindigul. The 5th defendant has preferred this appeal. Pending appeal D.5 died, his children are appellants 2 to 5. The appellants are concerned with Item No.4 to the plaint schedule property only.

(2.) THE suit was filed for partition of plaint schedule Item Nos.1 to 3 originally. Since D.2 and D.3 in their written statement raised a contention that the suit is bad for non -joinder of necessary parties and also bad for partial partition, the plaintiff had filed I.A.No.156 of 1985 to include Item No.4 i.e., S.No.236 to the plaint schedule. But a perusal of I.A.No.156 of 1985 will go to show that only D.1 to D.3 were arrayed as the respondents. The contesting defendant in respect of plaint schedule Item No.4 was D.5. He was alive when the trial was conducted before the trial Court. But he was not arrayed as respondent in I.A.No.156 of 1985 and no notice was served on him. Since all the respondents 1 to 3 in I.A.No.156 of 1986 have endorsed no counter, the said application was allowed and Item No.4 property was ordered to be included in the plaint schedule.

(3.) THE 5th defendant in his written statement would contend that he and his other two brothers viz., Perumal Gounder - (D.1) ( -his wife Kamatchi Ammal D.4) and Palanichamy (father of D.6 and D.7) partitioned their joint family property under a registered partition deed of the year 1976 and that D.5 is concerned only with Item No.4 to the plaint schedule property. In the year 1966 under an oral partition the house property situate at Kunjanampatti was allotted to the share of the 1st defendant and his sons and the house property situate at Mangari village was allotted to the share of Planichamy (father of D.6 and D.7) and the house property situate at Nettiapatti village was allotted to D.5 and the said allotment was also incorporated in the partition deed dated 23.11.1976. The ancestral house, -melsettu -, -mattukottam - were allotted to D.5. D.5 had dug a well, bathroom, latrine, compound wall and puja room in the said vacant site in the year 1966 and used as a frontage for his house for more than 20 years. It is the definite case of the 5th defendant that the plaint schedule Item No.4 exclusively belonged to him as per the partition deed dated 23.11.1976.