(1.) The plaintiffs in O.S.No. 136 of 2003 who succeeded in obtaining a decree for partition of their 1/3rd share in the suit property on the decree being reversed by the first Appellate Court in A.S.No.13 of 2011 have come forward with this second appeal.
(2.) The suit was laid by the plaintiffs claiming that the suit properties belonged to one Vellaichamy Servai, who died in the year 1978 leaving behind three sons namely, Rajendran, husband of the first plaintiff and the father of the plaintiffs 2 and 3, Rajan / first defendant and Ramadoss / third defendant. One of the sons namely, Rajendran died in the year 1999. According to the plaintiffs, on the death of Vellaichamy Servai, his three sons namely, Rajendran and the defendants 1 and 3 are entitled to 1/3rd share each. On the death of Rajendran in the year 1999, the 1/3rd share devolved on the plaintiffs. Hence, the suit.
(3.) The suit was resisted by the defendants contending that the defendants have perfected title by Ouster. It was also the case of the defendants that a partition took place between Vellaichamy Servai and his three sons on 25.03.1975 under a registered instrument, the suit property was not included in the said partition. The non-inclusion, according to the defendants is because the property was in exclusive enjoyment of the first defendant. It was further contended that ever since the date of said partition in the year 1975, the first defendant has been in possession and enjoyment of the property and therefore, the plaintiffs have lost their rights. It is also claimed that the plaintiffs 2 and 3 along with their deceased brother had filed a suit in O.S.No.63 of 1995 claiming share in the other properties that was subject matter of partition deed dated 25.03.1975. The suit property was not included in the suit. Hence, the present suit is barred under Order 2 Rule 2 of the Code of Civil procedure. A plea of non-joinder of necessary parties was also taken in as much as the suit property forms part of the Samudayam land in which there are about 48 joint Pattadars.