JUDGMENT

(Appeal Suit filed under Order XI Rule 1 of A.S. Rules of this Court, read with Section 96 of the Civil Procedure Code (CPC) against the judgment and decree dated 22.12.2017 made in O.S. No. 55 of 2012 on the file of the District Court, Karaikal.)

R. Subbiah, J.

1. This Appeal is filed by the plaintiffs who have instituted the suit in O.S.No.55 of 2012 on the file of the District Court, Karaikal for the relief of partition and separate possession. The trial court, by the judgment and decree dated 22.12.2017 dismissed the suit which gave rise to the filing of the present appeal.

2. The Plaintiffs have filed the suit in O.S. No. 55 of 2012 for the following relief:

(i) partition and separate possession of 8 Mahs 15 Kuzhis from out of a larger extent of 108 Mahs 15 Kuzhis in the suit property providing liberty to the plaintiffs to apply for final decree for division by metes and bounds.

(ii) directing the defendant to pay the plaintiffs mesne profits at the rate of Rs.5,000/- per month.

3. The case of the appellants/plaintiffs, as could be culled out from the plaint, is as follows:

(a) The plaintiffs are great grand children of Ponnusamy Padayachi and sons of Nataraja Padayachi. According to the plaintiffs, during the year 1925, their great grandfather Ponnusamy Padayachi, son of Subbu Padayachi purchased 5 Velis of Punja lands in O.S.No.340 in Varichikudi South Village, which he subsequently sold to one Balaguru Chettiar of T.R.Pattinam. Thus, the property purchased under 1925 document, was alienated by Ponnusamy Padayachi even during his lifetime to a third party. Subsequently, under a sale deed dated 18.04.1931, Ponnusamy Padayachi purchased land measuring an extent of 8 Mahs 15 Kuzhis in the very same Cadastre No. 340 of Varichikudi, which is the subject matter of the present suit. Out of 8 Mahs 15 Kuzhis, 4 Mahs alone was taken possession by the purchaser Ponnusamy Padayachi inasmuch as the remaining portion was under encroachment by one Ayyakannu Pillai. Therefore, a clause was incorporated in the sale deed dated 18.04.1931 to the effect that the purchaser, on his own, can take possession of the property which was encroached by one Ayyakannu Pillai by vacating him. It is the assertion of the plaintiffs that the vendor of the sale deed dated 18.04.1931 did not retain any land with him and he sold the entire land in his possession to Ponnusamy Padayachi. It was also stated in the plaint that land comprised in OS No. 340 consists of a larger extent of 108 Mahs 15 Kuzhis and that is the reason why, while executing the sale deed dated 18.04.1931, the four boundaries pertaining to the entire extent of 108 Mahs 15 Kuzhis was erroneously mentioned, but what was purchased by Ponnusamy Padayachi was only 8 Mahs and 15 Kuzhis.

(b) While the facts are so as stated above, Ponnusamy Padayachi died intestate in the year 1939, leaving behind his 4 sons namely Ramalinga Padayachi, Thiyagaraja Padayachi, Damodara Padayachi and Sambasiva Padayachi as his legal heirs. After the demise of Ponnusamy Padayachi, his four sons have decided to effect division of the family properties left by their father. Accordingly, during the year 1940, partition of all the properties owned by Ponnusamy Padayachi was effected, which included the properties owned by him in the State of Tamil Nadu and Karaikal under the erstwhile British Regime. In the said partition, the subject matter of the present suit, i.e. 8 Mahs 15 Kuzhis of Punja land, had been allotted to the share of Ramalinga Padayachi.

(c) The Plaintiffs further contend that their grand father Ramalinga Padayachi died in the year 1974, leaving behind his son Nataraja Padayachi and his daughter Savithriammal as his legal heirs. The plaintiffs are the sons of Nataraja Padayachi. The Plaintiffs also further contend that their grand father Ramalinga Padayachi had bequeathed the suit property in their favour by executing a registered Will, dated 01.05.1965 in which life interest was conferred on their father