VENKATARAMA IYER Vs. SUBRAMANIA SASTRY

JUDGEMENT

(1.) This appeal is by the 117 defendant and it is opposed mainly by the 22nd defendant. The hearing has taken a considerable time, but the issues, now that the facts are ascertained, are clear.

(2.) The suit was brought for the partition of the Samudayam land of a village in the Tanjore District, the Samudayam tenure, as explained in the District Manual, being a holding in common by the village community known as the mirasidars. It is not disputed that the land, of which partition is claimed, was and is Samudayam land; nor has any serious attempt been made to dispute here that it has never been divided and that it is now partible. On this point, it may be observed that the 22nd defendant no doubt set up a previous partition in his written statement; but it is clear that the matter is res judicata, against him, in consequence of Exs. T. A and R. the judgments in O.S. No. 367 of 1900. The lower appellate Court held that the parties before it had established their right to a certain number of shares in the Samudayam, of 30-59/64 shares, and, in a portion of its judgment which has formed the principal subject of discussion, it allowed the 22nd Defendant to retain as his share the plots in item No. 1., of which he is already in possession, item No. 1 being 4 1/2 velis in extent and the most valuable plot of the property in dispute and consisting in padugai land. The question argued first has accordingly been whether the 22nd defendant has a right to retain, in a division, the plots in item No. 1, of which he is in possession.

(3.) Prima facie, of course, the finding, which has already been referred to, in favour of the partible character of the land, entails that no share has been localized so far, since localization could only take place, on the ascertainment of shares on partition. The lower appellate Court has however supported the claim of the 22nd defendant in two ways: firstly, on the ground that he has prescribed for the ownership of the plots he is in possession of and secondly, on certain equitable considerations. It has no doubt not distinguished these two grounds very carefully in its judgment but we think that its decision is based on both of them.