IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.02.2020 CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

1.Venkatachalam

2.Ayyandurai .. Appellants Versus

1.P.Pachamuthu

2.P.Palanivel

3.A.T.Raja 4.Pavayee

5.Kamala .. Respondents Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and Decree in A.S.No.127 of 2012, dated 21.08.2013, on the file of the Principal Subordinate Judge, Salem in confirming the Judgment and Decree in O.S.No.1150 of 2007, dated 22.06.2012 on the file of II Additional District Munsif, Salem.

For Appellants : Mr.V.Raghavachari For Respondents : Mr.C.Emalias for R-1 No appearance for R-2 to R-5 ----

JUDGMENT

The unsuccessful plaintiffs in O.S.No.1150 of 2007, on the file of II Additional District Munsiff, Salem are the appellants herein. The suit was filed for partition of the suit property into two equal shares and allot one such share to the plaintiffs and for possession.

2. The undisputed facts are that the suit properties and other properties were originally owned by Porappa Gounder. He had two sons viz., Vellaiyan @ Marimuthu Gounder and Sadayan @ Porappa Gounder. The said Vellaiyan @ Marimuthu Gounder has one son-Pachamuthu and the said Sadayan @ Porappa Gounder has one son-Ponnusamy Gounder. The plaintiffs are the sons of Ponnusamy Gounder and the defendants are the legal-heirs of Pachamuthu Gounder. Both the parties have admitted that on 13.10.1980, the properties belonged to Porappa Gounder were partitioned between Pachamuthu Gounder and Ponnusamy Gounder. 'A' schedule properties in the partition deed were allotted to Pachamuthu Gounder and his sons, while 'B' schedule property was allotted to Ponnusamy Gounder and his sons.

3. The case of the plaintiffs is that Item Nos.22, 23, and 24 in 'A'

schedule property in the partition deed were kept as common as legal proceedings were pending in respect of those items. It is further stated that the legal-proceedings ended in favour of the defendants and hence, they are entitled for half share in the suit property.

4. In the written statement filed by the defendants 1 and 2, the allegations and averments made in the plaint were denied. It is stated that under the partition deed, dated 13.10.1980, the suit properties are alloted to Pachamuthu Gounder, son of Vellaiyan @ Marimuthu Gounder. The plaintiffs and the defendants are in enjoyment of their respective shares as per the partition deed, dated 13.10.1980 and hence, the plaintiffs are not entitled to half share in the suit property.

5. The defendants 4 and 5, who are the daughters of the said Ponnusamy Gounder filed written statements claiming equal share in the suit properties.

6. On the basis of the above pleadings, the trial Court framed necessary issues. On the side of the plaintiffs, two witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A4 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B7 were marked.

7. After considering the evidence adduced by the parties, the trial Court dismissed the suit. The Judgment and Decree of the trial Court was confirmed in the Appeal preferred by the plaintiffs in A.S.No.127 of

2012. Challenging the same, the present appeal has been filed.

8. Mr.V.Raghavachari, learned counsel for the appellants submitted that the decision of the Courts below in dismissing the suit is palpably erroneous and it should have appreciated that the partition deed, dated 13.10.1980 excludes suit Items 22, 23 and 24 from division and they were kept in common awaiting the result in the litigation. It is further submitted that the Courts below have not properly appreciated Ex.A1 and erroneously non-suited the plaintiffs.

9. Per contra Mr.C.Emalias, learned Senior counsel appearing for the first respondent submitted that the suit properties form part of 'A' schedule properties allotted to the father of the defendants, viz., Pachamuthu Gounder. The recital in Ex.A1 would make it clear that the suit items were not kept in common a