Question of adverse possession and limitation does not arise.

1. The appellant in S.A.No. 1351 of 1981 is the 1st defendant in O.S.No.647 of 1978, on the file of Principal District Munsif, Namakal. Subsequent to the filing of the second appeal, he died and his legal heirs have been impleaded as additional appellants. In the others second appeal, which arises out of O.S.No.308 of 1977, on the file of the same court, the plaintiff is the appellant. The plaintiff in O.S.No.308 of 1977 is the 1st defendant in O.S.No.647 of 1978. Both these suits were jointly tried and common evidence was taken in O.S.No.647 of 1978. The parties in these two appeals are also referred to in accordance with their rank in O.S.No.647 of 1978.

2. One Devi Gounder had four sons apart from his widow Sellayee. The sons are Karuppanna Gounder, Kuppusawami Gounder, Chellappa Gounder and Veerappa Gounder. The plaintiff in O.S.No.647 of 1978 is Karuppanna Gounder, and the 1st defendant in that suit is his brother Chellappa Gounder. The 2nd defendant therein is his another brother Veerappa Gounder. Kuppusamy Gounder, who is one of the brothers died and he is not a party to these proceedings.

3. O.S.No.647 of 1978 was the suit filed by Karuppanna Gounder for declaration of his right to ‘B’ schedule properties and for consequential injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment, and an alternative relief was also claimed for recovery of possession. In that suit he has also impleaded defendants 3 to 12 who are alienees of the property.

4. The material averments of the plaint could be summarised thus:

“After the death of Devi Gounder, the father, brothers entered into a partition under Ex.A-1, dated 19.3.1952. The family had 18.50 acres of land in four survey numbers, viz., S.No.l24/2B (5 acres and 22 cents) S.No. 124/1 (7 acres and 55 cents), S.N0.124/2C (4 acres and 73 cents) and S.No. 123/2 (1 acre). In the partition deed -Ex.A-1, each brother took 3 acres and 43 1/2 cents, With l/4th right in common pathways. The total area of partition was only 14 acres and 50 cents. The remaining 4 acres were left in common for the purpose of discharging certain debts and each brother undertook to discharge the debt in proportion to their right. On that date the family was in debt due to one Kolanda Gounder, on the basis of promissory note and mortgage deeds. As per Ex. A-2, dated 19.3.1952, the plaintiff i.e., Karuppanna Gounder took a sale deed from his mother and three brothers of their right in the common property, which was kept for discharge of debts. The recital therein directed Karuppanna Gounder to discharge the debt due to Kolanda Gounder under the promissory notes and also the mortgage debts. It is the case of the plaintiff that after he purchased the ‘B’ schedule property he left for Ceylon, entrusting the properties with his brothers, and it is also his case that he has discharged the debts due to Kolanda • Gounder. It is also his case that his brothers were directed to take the income and send the amount to him. After he returned from Ceylon, he took possession of the properties from his brothers, except that portion of the property which he conveyed to one Kumara Goundar under Ex.A-3 on 12.5.1957. It is his case that after he came into possession, the other defendants, at the instance of defendants 1 and 2 are interfering with his possession, which necessitated the filing of the suit.”

5. The appellant in his written statement contended that Ex.A-2 sale deed is one without consideration and therefore, title did not pass. According to him, the intention was that the plaintiff should discharge the debt due to Kolanda Goundar and he having failed to discharge the debt, the sale deed did not come into effect. He also contended that the subsequent conduct will prove that the intention of the parties was that if consideration did not pass. Ex.A-2 need not come into effect. He further said that the plaintiff was never in possession and the common property was