MEYYAPPAN SEVAI Vs. MEYYAPPAN AMBALAM

JUDGEMENT

(1.) The lessees of the Sivaganga Zamindari brought O.S. No. 68 of 1901, against a number of defendants, for possession of about 13 and odd Kurrukkams of land, lying within the limits of Sekkalakkottai, Sivaganga Zamin. The Zamindar was subsequently added as the fourth plaintiff and one Karuthan Ambalam was also added as fifth plaintiff. The suit which was originally instituted in the Court of the Subordinate Judge of Madura East, was decreed, in plaintiff's favour, by the Temporary Sub-Court of Madura, on 22nd February, 1908. The High Court confirmed the decision of the Temporary Sub-Court in A. Section No. 77 of 1901, on 4th February, 1914. One Meyyappan Servai is the transferee of the decree and is the appellant herein. Defendants 129 and 130 are the sons of the 61 defendant. They were brought on record after their father's death, in E.P. No. 734 of 1918. The appellant applied for execution of the decree, against the defendants 129 and 130, in E.P. No. 555 of 1919, in respect of two plots, one rectangular plot on which there is a house and another a traingular plot which is vacant and which is situate to the south of the former. They both form part of the extensive plot decreed to the plaintiff. The defendants 129 and 130 opposed the application for execution on the ground that they were not the legal representatives of the 61 defendant, that the plots in question fell to their share on partition with their father some years before 1901, when the suit was instituted; that the 61 defendant had no right or title to it, and the building was put up by them out of their own earnings; and that the father was never in possession of the house. The Subordinate Judge of Sivaganga held that the partition arrangement set up by the defendant was not proved: that they were not the legal representatives of the 61 defendant, and that they acquired a title to the property by prescription and dismissed the application for execution. Against this order, Meyyappan Servai has preferred this appeal and defendants 129 and 130 are respondents 1 and 2. The appeal was fully argued, on both sides, and there is no reason to doubt the correctness of the finding of the Subordinate Judge, on the question of the partition arrangement. Mr. Section Srinivasa Iyengar stated that he did not rely on the partition set up by his clients. His contention is that the defendants 129 and 130 ar8 not the legal representatives of the 61 defendant and they being members of an undivided Hindu family, the decree against the 61 defendant could not be executed against them. Before considering the question of law raised, it is necessary to consider what facts are established by the evidence.

(2.) The appellant's contention is that the rectangular plot was acquired by the 6 lab defendant, from defendants 40 and 50 and the triangular plot was never the property of the 61sb defendant and has always belonged to the 50 defendant.

(3.) [His Lordship then discussed the evidence and held that the rectangular plot was purchased by the 61 defendant, from defendants 40 and 50, under Ex. B, during the pendency of the suit, and the triangular plot never belonged to the 61 defendant, or his sons. His Lordship then proceeded as follows.]