JUDGMENT: The appellants in these appeals are the plaintiffs in suit in O.S.No.140 of 1984 on the file of the District Munsif’s Court, Tindivanam, seeking for declaration of their title to the suit schedule properties and for permanent injunction in S.No.4/1 measuring about 3.26 acres at Meladayalam village. The respondents 1 and 2 are the wife and son of one Narayanasamy Gounder, the first defendant in the above suit, who filed a separate suit in O.S.No.154 of 1984 on the file of the District Munsif’s Court, Tindivanam, for declaration of his title to the suit properties and for permanent injunction against the appellants in respect of four items including S.No.4/1.

2. The trial Court decreed the suit in O.S.No.140 of 1984 filed by the appellants and dismissed the suit in O.S.No.154 of 1984 filed on behalf of the respondents’ side. Having aggrieved over the same, Narayanasamy Gounder, the first defendant filed two appeals in A.S.Nos.128 and 129 of 1991 before the Subordinate Judge’s Court, Tindivanam, as against the judgment and decree passed in O.S.Nos.140 of 1984 and 154 of 1984. The lower appellate Court reversed the judgment and decree passed by the trial Court by dismissing the suit filed by the appellants in O.S.No.140 of 1984 and decreed the suit in O.S.No.154 of 1984 filed on behalf of the respondents. During the pendency of the said appeals, the first defendant Narayanasamy died. Therefore, the respondents 1 and 2 namely wife and son, filed an application to record them as L.Rs. of the deceased defendant. Accordingly, they were impleaded as respondents 1 and 2. On being aggrieved over the judgment of the lower appellate Court reversing the judgment and decree of the trial Court, the appellants have preferred these appeals.

3. For convenience sake, we would refer the appellants as plaintiffs and the respondents as defendants.

4. The case of the plaintiffs in O.S.No.140 of 1984 is as follows:

"The plaintiffs’ father Natesa Gounder, the first defendant Narayanasamy Gounder and Ramachandra Gounder are the sons of one Perumal Gounder. The suit property in S.No.4/1 measuring about 3.26 acres in Meladayalam village was divided into three equal shares among the three brothers. In that, 1 acre 26 cents fell to the share of the plaintiffs’ father Natesa Gounder and 1 acre 26 cents fell to the share of Ramachandra Gounder. The remaining extent fell to the share of Narayanasamy Gounder, the first defendant. In 1952, the father of the plaintiffs purchased the share of Ramachandra Gounder under a sale deed. Those properties were divided in 1982 between the plaintiffs who are the brothers, by a registered deed dated 22.2.1982. The properties allotted to the plaintiffs 1 to 4 were described as Schedule A, B, C, D. The father of the plaintiffs had not retained any share in the suit property. Narayanasamy Gounder, the first defendant taking advantage of the difference of opinion between the plaintiffs and their father, filed a suit in O.S.No.596 of 1979 against their father and brother and obtained a collusive decree for partition of 1/3rd share in the suit property. In that suit, though the plaintiffs attained majority at the time of the suit, were not impleaded. The father of the plaintiffs also was not arrayed as a Karta of the family. Taking advantage of the decree in O.S.No.596 of 1979, the defendants were denying the title of the plaintiffs and interfering with their peaceful possession and enjoyment. Hence, the suit for declaration of title and permanent injunction."

5. The case of the first defendant in his written statement in the suit and the plaint in O.S.No.154 of 1984 is as follows:

"The suit properties were the joint family properties of himself and his brothers Natesa Gounder and Ramachandra Gounder. There was no partition taking place as alleged by the plaintiffs. In the year 1979, on refusal of the father of the plaintiffs to partition for his 1/3rd share, the first defendant was constrained to file O.S.No.596 of 1979 for a

Click Here to Read the rest of this document