V SADASIVAN NAIR Vs. RAGHAVAN NAIR

JUDGEMENT

(1.) THIS Second Appeal has been filed against the judgment and decree made in A.S.No.101 of 1999, dated 04.06.2003, on the file of the Subordinate Judge, Padmanabhapuram, confirming the judgment and decree made in O.S.No.932 of 1994, dated 17.09.1999, on the file of the Additional District Munsif, Padmanabhapuram.

(2.) THE gist and essence of the averments in the plaint is as follows: THE plaint "A" schedule property originally belonged to Ammukutty Amma and her children and they are in peaceful possession and enjoyment of the same. THEy sold the plaint "A" Schedule property along with the portions of the house therein to the father of the plaintiffs 1 and 2 and i.e., Vasudevan Pillai, son of Padmanabhan Pillai, under registered a sale deed, dated 05.06.1961. From the date of purchase, he is in possession and enjoyment of the same. THE adjacent western property is an ancient family house and house site of the plaintiffs and others and they are permanently residing therein. Whileso, the father of the plaintiffs 1 and 2 executed a will in favour his wife and children on 05.07.1962. He died on 14.01.1989. So the property developed upon his sons, plaintiffs 1 and 2 and husband of the third plaintiff and father of plaintiffs 4 and 5 by name Krishnan Nair, under "D" schedule item No.5, "F" schedule item No.6 and "G" schedule item No.5 respectively. Krishnan Nair predeceased him on 17.07.1986. THE one third right of Krishnan Nair in the suit property subsequently devolved upon the plaintiffs 3 to 5, being his widow and children. THE plaintiffs are in peaceful possession and enjoyment of the plaint schedule property, as absolute owners. THE property lying further south and east to the plaint schedule property is subsequently obtained by the defendant in this suit and others. THE defendant has got no manner of right, title or possession for any portion in the plaint "A" schedule property. But the defendant is now wantonly attempting to disturb the possession and enjoyment of the plaintiffs over the plaint "A" schedule property and also attempting to put up new constructions within the suit property. It was prevented. So the plaintiffs are constrained to file this suit for declaration of title and possession and for consequential injunction restraining the defendant and their men and agents from trespassing or disturbing the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property (or) in alternative prayed that the plaintiffs are entitled to a decree for partition and separate possession of their plaint "A" schedule property being northern one half in the plaint "B" schedule property as no partition or separation effected among the sharers so far. On the contrary, the plaintiffs are entitled to a decree for demarcation and putting up separate boundaries for plaint "A" schedule property separating the same from the defendant's property through court in execution.

(3.) THE gist and essence of the additional written statement filed by the defendant is as follows: THE suit survey number has got a total area of 1 acre and 94 cents. THE entire 1 acre and 94 cents was partitioned by metes and bounds. THE present suit "B" schedule property was dealt with as "A" schedule property. It is clear from the sale deed produced by the plaintiffs. Since the whole subject-matter was partitioned, a suit for fresh partition of a definite plot will not lie. THE defendant is the purchaser of a definite plot even according to him. A purchaser of a definite plot cannot seek the relief of partition and hence the relief of partition being one of partial partition cannot be allowed and prayed for the dismissal of the suit.