(1.) The Second Appeal on hand is filed against the judgment and decree passed in A.S.No.29 of 2002 on the file of learned Additional District Judge, Fast Track Court.IV, Poonamallee, reversing the judgment and decree passed in
(2.) One Sri.Chithirai, father of the plaintiff had two wives namely Gengammal and Varadhammal. The plaintiff is the only son through the 2nd wife, namely Varadhammal. The defendants are the sons through the 1st wife, namely Gengammal. 2 Acres and 47 Cents in Vellanoor Village belonged to Chithirai, out of which, he sold 'A' Schedule to Varadhammal on 14.09.1967. The remaining 1 Acre and 80 Cents were equally divided amongst plaintiff and two defendants and each shared 60 Cents equally. The plaintiff is the only legal heir to the said Varadhammal and therefore, the plaintiff claims that he is in absolute possession and enjoyment of the 'A' Schedule property, measuring 20 Cents of 'B' Schedule property. Based on the ground that the plaintiff is in possession and enjoyment of the suit schedule property, the suit was filed for permanent injunction. The defendant rebutted the contentions raised by the plaintiff in the plaint. Though the relationship between the plaintiff and the defendants were admitted, the defendants had not admitted the possession and enjoyment of the suit schedule property of the plaintiff. Oral partition of 0.60 Cents to each son is admitted by the parties, the defendants had purchased 0.40 Cents, out of 0.60 Cents share of the plaintiff and therefore, it was claimed that the defendant is entitled for 1 Acre and 08 Cents inclusive of the other lands purchased by him. It was stated that the defendant had been cultivating the suit lands and the plaintiff was not in possession of the suit schedule property.
(3.) It is further contended by the defendant that he had already filed the Civil Suit in O.S.No.409 of 1991 and an ex-parte decree was granted in his favour. The plaintiff in O.S.No.348 of 1997 filed an application to set aside the ex-parte decree in Interlocutory Application in I.A.No.1326 of 1997 and the same was also dismissed and accordingly, the ex-parte decree passed in O.S.No.409 of 1991 became final.