Failure to challenge a sale deed standing in the name of a defendant may render a suit claim for partition not maintainable.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 24.06.2022 passed in A.S.No.125 of 2018 on the file of the 1st Additional District Court, Tirunelveli confirming the judgment and decree dated 06.02.2018 passed in O.S.No.22 of 2012 on the file of the Additional Sub Court, Tirunelveli.)

1. This Second Appeal has been filed challenging the concurrent findings of the courts below. The plaintiffs in the suit in O.S.No. 22 of 2012 on the file of the Additional Sub Court, Tirunelveli are the appellants herein.

2. The suit was filed for partition claiming 4/5th share in the suit schedule property. The plaintiffs claim that their father Arumuga Nainar, the first defendant in the suit led a wavered life and he never executed a sale deed dated 21.02.2007 in favour of the second defendant. According to the plaintiffs, after the death of their father Arumuga Nainar, they are entitled to 4/5th share. The plaintiffs claim that the suit schedule property is an ancestral property of Kadarkariandi Nadar. The plaintiffs being his grand children are therefore entitled to equal shares along with the first defendant who is their father. In such circumstances, they have filed the suit for partition claiming 4/5th share.

3. However, as seen from the written statement filed by the second respondent in whose favour the suit schedule property was sold by the first defendant under sale deed dated 21.02.2007, the second defendant claims that only through a valid sale deed dated 21.02.2007 he had purchased the suit schedule property from the first defendant. It is also contended by the second defendant that after purchase, he filed a petition in R.C.O.P.No.32 of 2010 against the first defendant for eviction and obtained delivery through the court in an Execution Petition. The second defendant also contended that without challenging the sale deed dated 21.02.2007 standing in his name, the suit is not maintainable. The second defendant also contended that there is no joint possession and therefore, the payment of court fee by the plaintiffs is not correct. The second defendant also contended that the suit schedule property is an absolute property of the first defendant through a settlement deed and hence, he has got absolute right to sell the property.

4. Based on the pleadings of the respective parties, the trial court framed issues. Before the trial court, the appellants/plaintiffs filed 3 documents, which were marked as Ex.A.1 to Ex.A.3 and on their side, one witness was examined namely, the third plaintiff as P.W.1. On the side of the respondents/defendants, 11 documents were filed, which were marked as Ex.B.1 to Ex.B.11 and one witness namely, Balasubramanian, the fourth defendant in the suit was examined as D.W.1. Based on the oral and documentary evidence available on record, by its judgment and decree dated 06.02.2018 passed in O.S.No.22 of 2012 the Additional Sub Court, Tirunelveli, dismissed the suit by giving the following reasons:

a)The plaintiffs have not established that they are the legal heirs of the first defendant and they have also not produced any death certificate or legal heirship certificate for Kadarkariandi Nadar;

b)The settlement deed executed in favour of the first defendant by Kadarkariandi Nadar itself is doubted as it creates many suspicions regarding the execution, identity of person and property;

c)Both parties have failed to establish the title of the first defendant through settlement deed;

d)The sale deed executed by the first defendant dated 21.02.2007 in favour of the second defendant also creates many suspicions;

e)Delivery taken through the court will not give any right when the parties have not proved their right and title. By giving the aforesaid reasons, the suit came to be dismissed.

5.The lower Appellate Court, while dismissing the first appeal filed by the plaintiffs, has given the