K JAGANNATHAN Vs. K RAMAMOORTHY

JUDGEMENT

(1.) This Second Appeal has been filed by the first defendant against the judgment and decree passed by the First Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore, in A.S.No.175 of 1996 dated 31.03.1998 modifying the judgment and decree passed by the II Additional Sub-Judge, Coimbatore in O.S.No.819 of 1998 dated 03.07.1996.

(2.) The first respondent herein has filed a suit in O.S.No.819 of 1998 on the file of the II Additional Sub-Judge, Coimbatore, to divide the suit properties into five equal shares with reference to good and bad soil and allot one such share to him. The learned Sub-Judge by his Judgment dated 03.07.1996 has passed a preliminary decree to divide the suit properties into three equal shares and allot one such share to the first respondent herein. He further ordered that at the time of dividing the suit properties, the plaintiff and the defendants 1 and 2 have to be allotted the portions, in which, they are in possession, on the basis of equity. Aggrieved by the same, the second respondent/second defendant has filed an appeal in A.S.No.175 of 1996 on the file of the first Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore. The appellant herein has filed Cross Appeal praying to dismiss the appeal as well as the suit. The learned First Appellate Court Judge by his judgment and decree dated 31.03.1998 confirmed the trial court judgment and decree in respect of dividing the suit property into three equal shares and to allot one such share to the plaintiff and also ordered to allot one such share to the second defendant. However, he set aside the portion of the decree which directs to allot the portions, in which, the parties are in possession. Aggrieved by the same, the appellant herein has filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial court.

(3.) The averments made in the plaint, are in brief, as follows: