MARI Vs. MANNANGATTI

JUDGEMENT

(1.) The plaintiff in O.S.No.605 of 2007, whose suit for declaration and recovery of possession was decreed by the Trial Court upon its reversal by the lower Appellate Court has come up with this second appeal.

(2.) The suit was laid by the plaintiff claiming that the suit properties were allotted to him at a partition that took place about 30 years prior to the institution of the suit and that he has been in possession of the property. The defendants, who are the brother, brother's wife and children of the plaintiff interfered with his possession claiming that they had filed a suit for injunction in O.S.No.502 of 2000. The said suit came to be dismissed on the finding that though the suit properties were assigned to the first defendant in the year 1978 at a subsequent partition in the family, the suit properties namely an extent of 26 cents in Survey No.10/9B and at 24 cents in Survey No. 10/6A and 1 cent in Survey No.12/8 with 1/6th share in the Well were allotted to the plaintiff in the present suit namely, O.S.No.605 of 2007, who was the second defendant in the earlier suit namely, O.S.No.502 of 2000 by the judgment and decree dated 08.10.2003. The said judgment was challenged by the defendants 1 and 2 herein in A.S.No.145 of 2003 on the file of the Sub-Court, Kallakurichi. The said appeal was dismissed and the judgment and decree of the Trial Court dated 08.10.2003 were affirmed by the Sub-Court, Kallakurichi on 25.11.2005. There was no further appeal and the judgment of the Sub-Court has become final. Claiming that the defendants have trespassed into the property, the plaintiff has now filed the present suit for declaration of title, recovery of possession and for mense profits.

(3.) The suit was resisted by the defendants contending that the plaintiff has suppressed the findings of the Trial Court in O.S.No. 502 of 2000. It was claimed that the other brothers of the plaintiff and the first defendant who were parties in O.S.No. 502 of 2000 are necessary to the present suit. It was claimed that the suit is not maintainable. On the above contentions, the defendants sought for dismissal of the suit.