MUNIYANDI Vs. ALAGIRI

JUDGEMENT

(1.) -This second appeals has been filed by the appellants against the judgment and decree of the learned Subordinate Judge, Aruppukkottai dated 23.2.2004, in A.S.Nos.64 and 65 of 2002 confirming the decree and judgment made in O.S.No.303 of 1997 dated 10.7.2000 on the file of the District Munsif, Aruppukkottai.

(2.) THE averments in the plaint is as follows: The suit items 1 and 2 were originally belonging to one Iruli, who is the paternal grandmother of the plaintiffs and defendants. The third item of the suit, which is grama natham was belonging to One Koosali, who is the husband of said Iruli. Both Koosali and Iruli died. They were having two sons and one daughter namely, Subban, Alagiri and Mariammal. Alagiri is the first plaintiff. Mariammal is the second plaintiff and the children of Subban are defendants 1 to 6. After the death of Iruli and Koosali, the plaintiffs and Subban, who is the father of the defendants had jointly enjoying the suit properties. After the death of Subban, the defendants and plaintiffs have enjoyed the properties. Kist receipts stand in the name of defendants. While being so, the 4th and 5th defendants as plaintiffs filed a suit for declaration and injunction in O.S.No.151 of 1984 before the District Munsif Court, Manamadurai against the second plaintiff and her children. The suit has been dismissed by the learned District Munsif, Manamadurai on 8.1.1986 stating that the suit properties are undivided joint family properties of the plaintiffs and the father of the defendants. Against the judgment and decree, the defendants therein had preferred an appeal in A.S.No.47 of 1988 before the learned Subordinate Judge, Devakottai, where the same was dismissed and confirming the judgment and decree passed in O.S.No.151 of 1984. After that, these plaintiffs demanded partition, but the defendants evading the same. Hence, the plaintiffs have come forward with the suit for partition claiming 2/3rd share in the suit properties. During the pendency of the suit, the second plaintiff died and her legal heirs were impleaded as plaintiffs 3 to 5 and prayed for a preliminary decree for partition.

(3.) THE gist and essence of written statement filed by the fourth defendant is as follows: The suit is not maintainable both in law and facts. The first plaintiff and his power agent have not residing in the said village and they are not in the joint possession of the suit properties. Items 1 and 2 of the suit properties are only belonging to Iruli. The third item of the suit property is not belonging to her. It is only a Government poramboke and the defendants put up a hut and residing there. The third item of the suit property is not a joint family property. The suit properties are in possession of the defendants prior to the institution of the suit in O.S.No.151 of 1984. The defendants are in possession of the suit properties for more than statutory period with adverse to the interest of the plaintiffs. Hence, they prescribed title by adverse possession. There is no cause of action for the suit and thus, the defendants prayed for the dismissal of the suit.