S.A.No.550 of 2007

and M.P.No.3 of 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.04.2023

CORAM:

THE HONOURABLE MRS. JUSTICE R. HEMALATHA

S.A.No.550 of 2007

and

M.P.No.3 of 2007

Vetrivel

..Appellant

vs.

1.Palaniammal (Died)

Perumal (Died)

2.Subbanna Gounder

3.Malayammal

4.Rangasmay

5.Muthusamy

6.Iyyasamy

7.P.Nachammal

8.Sankaramurthy

9.Murugambal

10.Lakshmi @ Selvi

11.Nachimuthu (Died)

12.Jayaramamurthy

13.Komaladevi

14.Gopalakrishnan

..Respondents

(R1 died, R11 to 14 are brought on record as LRs of the deceased R1 vide

Court order dated 09.09.2022 made in CMP.Nos.15434 to 15436/2017 in

S.A.No.550/2007. Subsequently R11 died and since his legal heirs were

already on record as R12 to R14 the same was recorded vide order of this

Court dated 24.01.2023)

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S.A.No.550 of 2007

and M.P.No.3 of 2007

PRAYER: Second Appeal filed under Section 100 of Civil Procedure

Code against the decree and Judgment dated 23.08.2005 in AS.No.69 of

2004 on the file of the Principal District Court, Erode, upholding the final

decree and Judgment dated 29.09.2003 in I.A.No.338 of 1999 in

O.S.No.100 of 1999 on the file of the District Munsif cum Judicial

Magistrate, Kodumudi.

For Appellant

: Mr.D.Selvaraju

For RR2, 4 & 5

: Mr.V.S.Kesavan

For RR12 to 14

: Mr.P.Saravanan

RR1, 3, 8 &11

: Died

JUDGMENT

This Second Appeal is filed challenging the the decree and

Judgment dated 23.08.2005 in AS.No.69 of 2004 on the file of the

Principal District Court, Erode, upholding the final decree and Judgment

dated 29.09.2003 in I.A.No.338 of 1999 in O.S.No.100 of 1999 on the file

of the District Munsif cum Judicial Magistrate, Kodumudi.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and in appropriate places, their rank in the

present second appeal would also be indicated.

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S.A.No.550 of 2007

and M.P.No.3 of 2007

3. The brief facts of the case are as follows:

i. One Palaniammal (plaintiff) filed a suit for partition against her

brother Perumal in O.S.No.472 of 1986 before the learned District

Munsif, Erode, seeking for partition of the suit properties into two

equal shares and to allot one such share to her and for mesne

profits. The said suit was transferred to the Court of District Munsif

cum Judicial Magistrate, Kodumudi and the same was renumbered

as O.S.No.100 of 1999.

ii. The trial Court decreed the suit filed by the plaintiff vide decree and

judgment dated 28.11.1994.

iii. Since Perumal (1st defendant) during his lifetime alienated one acre

of land to one Subanna Gounder, he was impleaded as a party in

the suit. Perumal's children and wife were also impleaded as the

defendants 4 to 6 and they filed an appeal in A.S.No.50 of 1995

before the II Additional District Court, Erode.

iv. The learned II Additional District Judge, Erode after analysing the

oral and documentary evidence adduced on both sides, modified the

preliminary decree passed by the trial Court by allotting one acre to

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S.A.No.550 of 2007

and M.P.No.3 of 2007

the defendants 2, 4, 5 & 6 since Perumal executed a sale deed

(Ex.B2) in respect of one acre of land in their favour.

v. Thereafter, no appeal was filed against the same.

vi. Subsequently, the plaintiff filed an application in I.A.No.338 of

1999 in O.S. No.100 of 1999 for passing a final decree by

appointing an Advocate Commissioner to divide the suit property as

per the preliminary decree.

vii.The Advocate Commissioner inspected the suit property and

divided the same in accordance with the preliminary decree and at

the time of passing of final decree the eleventh respondent filed an

application in I.A.No.11 of 2001 to get himself impleaded as a party

to the final decree proceedings.

viii.The said petition was a