ORDER

The present writ petition has been filed challenging an order passed by the third respondent herein under which he has cancelled the patta standing in the name of the writ petitioners and restored the patta in the name of the fifth respondent herein.

2.According to the learned Senior Counsel appearing for the writ petitioners, the survey number in dispute was originally owned by one Karuppayeeammal. She had mortgaged the said property in favour of one A.Veerakutti Thevar. Since the said Karuppayeeammal could not redeem the property, she has executed a registered sale deed in favour Gurusamy Thevar, S/o.A.Veerakutti Thevar who is the father of the fifth respondent herein. The learned Senior Counsel had further contended that the sale deed dated 31.07.1934 would clearly disclose that the mortgage money paid by the father of the fifth respondent has been adjusted and the balance amount alone had been paid by the father of the fifth respondent herein.

3.The writ petitioners are the legal heirs of one Annamalai Thevar who is none other than the brother of Gurusamy Thevar.

4.According to the learned Senior Counsel, when the property was purchased in the name of Gurusamy Thevar on 31.07.1934, the petitioners' father Annamalai Thevar was a minor. Hence, the property was purchased in the name of eldest son namely Gurusamy Thevar. Therefore, it is a joint family property. The learned Senior Counsel further contended that after the death of A.Veerakutti Thevar, the properties were orally partitioned between Gurusamy Thevar and Annamalai Thevar. In the said oral partition, 40 ares allotted to the share of Gurusamy Thevar which they have already sold out. The balance 39 acres were allotted to the share of Annamalai Thevar. He had further contended that the fifth respondent herein had filed O.S.No.27 of 2011 before the District Munsif Court, Sivakasi as against the writ petitioners herein for the relief of declaration of title and permanent injunction. The said suit was dismissed for default on 19.01.2012. Thereafter, the fifth respondent herein has approached the Revenue Divisional Officer on 30.01.2012 seeking transfer of patta in his name.

5.The learned Senior Counsel had further contended that the Tahsildhar has granted patta in favour of the writ petitioners by way of an order dated 06.07.2010. Only thereafter, a civil suit came to be filed by the fifth respondent which was dismissed for default. Hence, the order passed by the third respondent which was confirmed by the second respondent herein are clearly in violation of the Civil Court order and hence, they are liable to be set aside.

6.The learned Senior Counsel had further contended that the oral partition between the petitioners' father Annamalai and the fifth respondent's father Gugursamy Thevar is reflected in a mortgage deed dated 22.09.1949. Under the said document, the father of the writ petitioners namely Annamalai Thevar had executed a registered mortgage in favour of the third party with regard to his undivided ½ share in Survey No.766/2 for an extent of 2 acres and 13 cents. The said mortgage deed has been attested by the father of the fifth respondent herein. Hence, it is clear that the fifth respondent's father has admitted the oral partition between the petitioners' father and the said Gurusamy Thevar. The learned Senior Counsel had further contended that the fifth respondent's sister had initiated O.S.No.81 of 2011 on the file of the Subordinate Court, Sivakasi for the relief of partition and separate possession of her ½ share. In the said suit, the present fifth respondent is the first defendant. The fifth respondent has filed a written statement admitting the fact that there was an oral partition between Annamalai Thevar and Gurusamy Thevar.

7.According to the learned Senior Counsel, the petitioners have proved the oral partition between their father and the father of the fifth respondent. The learned Senior Counsel had further contended that in view of the said pa