GNANASUBRAMANIAN Vs. SUBRAMANIAYA PILLAI

JUDGEMENT

(1.) THE above second appeal has been filed by the plaintiff in O.S.No.910 of 1980 on the file of the District Munsif's Court, Villupuram, who succeeded before the learned trial judge but lost before the first appellate court in A.S.No.7 of 1983, where under the learned Subordinate Judge, Villupuram, chose to reverse the judgment and decree of the learned trial Judge.

(2.) THE suit O.S.No.910 of 1980 came to be filed for partition and separate possession of the plaintiff's 1/4th share of the suit property and 1/4th share rent from the date of the plaint. THE case of the plaintiff is that the suit property belonged to one Jankirama Pillai and his sons, who are defendants 1 to 3, fourth defendant being the daughter and the fifth defendant the wife of Jankirama Pillai. First defendant sold his 1/4th share to the plaintiff under a registered sale deed dated 5.7. 1967, marked as Ex.A-2, and the father Jankirama Pillai is said to have died in the year 1973 leaving behind three sons, daughter and wife. Since the plaintiff wanted his share divided by metes and bounds and defendants 1 and 3, though, initially were offering to sell, later, did not pursue the same, the plaintiff was driven to the necessity of filing the suit noticed supra. THE second defendant filed a written statement which was adopted by the third defendant contending that the sale said to have been effected in favour of the plaintiff was neither valid nor binding, that knowing that the plaintiff had purchased a portion from the first defendant, the defendants along with their father issued a registered notice on 6.9.1967, marked as Ex.B-3 which was also received by the plaintiff and that he kept quiet all along till the suit in question came to be filed on 26.8.1980. It was also contended that the first defendant, who sold a share in the property, was out of possession of the property and when the attempt of the purchaser to claim possession was resisted, the plaintiff must be considered to have been ousted from the property at least on and from the date of the notice Ex.B-3 and that Jankirama Pillai, the father has executed a settlement in favour of defendants 2 and 3 and by virtue of their continuous, uninterrupted and open possession and enjoyment of the property, they have also prescribed title by adverse possession. On the above claims and counter claims, the suit came to be filed and tried and both the parties have adduced oral and documentary evidence.

(3.) THE decision in Manikayala Rao, A.I.R. 1966 S.C. 470 required reference particularly of the circumstances also in which it came before the Supreme Court. Pursuant to a money decree obtained, 4/5th share of the property were put to auction and the sale was confirmed in favour of the court auction purchaser. THE said purchaser, in his turn, sold the same to another person and thereupon he was able to secure an order from the competent court under O.21, Rule 35(2) of the Code of Civil Procedure and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to the ultimate purchaser from the court auction purchaser along the members of the joint family, who are in actual possession. Pursuant to the said order, consequentially action appears to have been taken and in carrying out the orders of the court, possession was said to have been delivered to the ultimate purchaser from the court auction purchaser by publishing the same by beat of drum as per the rules. When the court auction purchaser filed a suit for his 4/5th share, he was declared to be entitled to 2/3rd share only and when the matter was taken up before the High Court, it was held that the suit was barred by limitation under Art. 144 of Schedule I to the Limitation Act, 1963, 1908. THE cross-objection filed by the court-auction purchaser for the entire 4/5th share also appears to have been dismissed and it is in such circumstances, the matter was pursued before the Supreme Court.