RAMASAMY NADAR (DECEASED) Vs. ALAMELU

JUDGEMENT

(1.) Second Appeal is filed against the judgment and decree dated 05.07.2007 made in A.S.No.30 of 2006 on the file of the Sub Court, Mettur, confirming the judgment and decree dated 21.08.2006 made in O.S.No.34 of 1997 on the file of the District Munsif Cum Judicial Magistrate Court, Omalur.

(2.) The defendants 1 and 5 who are unsuccessful in both the Courts below have come out with the present Second Appeal. The 1st appellant/1st defendant died pending Second appeal and appellants 3 to 5 were brought on record as the legal heirs of the deceased 1st appellant. The respondents 1 to 5 and one Palniammal filed the suit O.S.No.34 of 1997 for partition and separate possession of two acres described in the schedule to the plaint. The first respondent is wife, respondents 2 to 5 are children and the 6th plaintiff is mother of Chinnapaiyan @ Ramasamy Nadar. According to the respondents 1 to 5 and said Palaniammal, the said Chinnapaiyan @ Ramasamy Nadar purchased 1 acre and 80 cents in Survey No.224/1 and another 20 cents in the same Survey number in Manathal village by the sale deed dated 28.09.1968 and 04.10.1966 respectively for valuable consideration. From the date of purchase, he was in joint possession of the property with Perianna Nadar and enjoyment of the property measuring 6 acres and 12 cents along with other properties. The joint patta was issued in their name. The said Perianna Nadar died and his legal heirs are defendants 2 to 4/respondents 6 to 8. The suit properties are separate, not subdivided and appellants and respondents are not able to enjoy the properties in common. Inspite of panchayat, appellants did not partition the property and hence, plaintiffs filed the said suit for the above stated relief. The parties are referred as arrayed in the suit.

(3.) The deceased 1st defendant filed written statement and denied that Chinnapaiyan @ Ramasamy Nadar purchased 1 acre and 80 cents and 20 cents and he was not in possession and enjoyment of the same till his death. The land in Survey No.224/1 in Manathal Village measuring 6 acres 12 cents belonged to one Chinnapaiyan Nadar. He had two sons viz., Kalimooppan and Narayanan. The said Kalimooppan had two sons, Ramasamy Nadar/first defendant and Lakshmanan. Kalimoopan had 06 acres of land as his share. Out of this, the deceased 1st defendant had obtained an extent of 1.53 acres as his share. Kali Nadar has created nominal sale deed in favour of Ramasamy Mudaliar to obtain loan. Subsequently, he repaid the loan and got back the property. Lakshmanan sold 1.47 acres to Perianna Nadar. Out of remaining 06 acres, Ramasamy Mudaliar sold 3 cents on 007.1946 to the deceased 1st defendant. The said Ramasamy Mudaliar sold 77 cents of land to Chinnapillai, wife of deceased 1st defendant. Again, on 109.1956, the said Ramasamy Mudaliar sold 60 cents of land to deceased 1st defendant. The family members of deceased 1st defendant was having the land to the extent of 2 acres and 93 cents. Perianna Nadar was having the land to the extent of 1.53 acres.