C O M M O N J U D G M E N T

S.A.No.690 of 2020 arising out of a suit in O.S.No.1018 of 2010 for partition filed by the appellant herein against the respondents. SA.No. 691 of 2020 arising out of O.S.No.123 of 2009 for the relief of delivery of possession, filed by the first defendant in OS.No.1018 of 2010 as the plaintiff. The appellant and the respondents in both the appeals are the children of one deceased Marnadu.

2. Pleadings in O.S.No.123 of 2009:-

(a) Brief averments of the plaint in OS.No.123 of 2009:-

According to the plaintiff, the suit property is absolute property of the plaintiff by virtue of the Sale deed dated 09.12.1999. The defendants 1 to 5 are his siblings, and on the permission granted by the plaintiff, they have been residing in the first and second floors of the suit property. Whereas, the plaintiff is residing in the ground floor. According to this plaintiff, the possession of the defendants is under the permission of the plaintiff. It is the submission of the plaintiff that the defendants has their own houses and let out their house and receiving rents. Now that the first and second floors are required for the plaintiff. When the plaintiff requested the defendants to vacate the premises, for one reason or the other, they have been delaying the same. In this regard, the plaintiff has sent a legal notice, for which, the defendant has sent a untenable reply. Therefore, the plaintiff seek for the relief of delivery of possession of the first and second floors of the suit property.

(b). The written statement in OS.No.123 of 2009 in brief is as follows:-

These defendants admit the relationship. According to these defendants, the suit property is not the absolute property of the plaintiff, on the contrary, the same is a joint family property and that these defendants have been in a possession and enjoyment of the suit property as joint owners. It is the specific submission of these defendants that the suit property has been purchased from and out of ancestral nucleus and through the joint family income derived from “Sri Devi Sweets”. These defendants further submit that the plaintiff has also purchased two other house properties at Solaiazhagupuram in the year 2005 from and out of the joint family income. It is the submission of these defendants that they are enjoying the first and second floor of the suit property only in the capacity as the joint family members, and the plaintiff has no right to direct the defendants to vacate from the suit property. Therefore, the defendants prayed to dismiss the suit.

3. Pleadings in O.S.No.1018 of 2010:-

(a). Brief averments of the plaint in OS.No.1018 of 2010:-

The plaintiffs in OS.No.1018 of 2010 are the defendants in OS.No.

123 of 2009. The first defendant in OS.No.1018 of 2010 is the plaintiff in O.S.No.123 of 2009. According to the plaintiff, the first item of the suit property was purchased from the joint family income and ancestral nucleus. It is the submission of the plaintiff that the first defendant has no separate income of his own, except coparcenary income of the Sweet stall till2006. Though the first item of the property stands in the name of the first defendant, the same is only the joint family property. It is also the submission of the plaintiff that the items 2 & 3 of the property were purchased in the name of the first defendant, being the elder member and Karta of the joint family through the joint family income derived from the “Sri Devi Sweets”. Therefore, according to the plaintiff even the suit property items 2 and 3 are the joint family property and that the plaintiff is having right over the same. Hence, the plaintiff has come forward with the relief of partition to divide the suit property into 7 equal shares and to allot the five equal shares to the plaintiffs jointly.

5. The written statement of the first defendant in OS.No.1018 of

2010 in brief is as follows:-

This defendant disputes the contents made by the plaintiff. It is the submission of the first d