IN THE HIGH COURT OF JUDICATURE AT MADRAS Received on :14.12.2023 Pronounced on : 22.02.2024 CORAM :

THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN S.A.No.611 of 2007 and C.M.P.No.1 of 2007

1.Swaminathan

2.Chinnasamy(Died) ...Defendants/Appellants /Appellants

3.Muthumalasamy

4.Balasubramaniam(Died)

5.Devanathn (A3 to A5 are brought on record as LRS of the deceased 2^nd appellant vide Court order dated 26.11.2019)

6.B.Amutha

7.B.Vigneswaran

8.B.Vishupriya

9.B.Vijayakumari (A6 to A9 are brought on record as LRS of the deceased 4^th appellant vide Court order dated 09.09.2022)

Vs.

Muthusamy(Died)

2.M.Panchavarnam

3.M.Selvarasu

4.M.Gunasekaran

5.M.Murugan ... Plaintiffs/Respondents/

Respondents (R2 to R5 are brought on record as LRS of the deceased sole respondent vide Court order dated 26.11.2019)

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree in order dated 31.08.2006 made in A.S.No.39/05 on the file of the Sub-Court, Chidambaram, confirming the judgment and decree order dated 28.04.2005 made in O.S.No.17 of 1995 on the file of the District Munsif Court, Chidrambaram.

For Appellants : Mr.Srinathsridevan, Sr.Counsel for Mr.K.Harishankar For R3 to R5 : Mr.G.Rajagopalan, Sr.Counsel for Mr.R.Thanjan For R1,R2&R4 : Died ****

J U D G M E N T

The present second appeal has been filed against the judgment and decree dated 31.08.2006 made in A.S.No.39/05 on the file of the Sub-Court, Chidambaram, confirming the judgment and decree, dated 28.04.2005 made in O.S.No.17 of 1995, on the file of the District Munsif Court, Chidambaram.

2.The instant second appeal has been filed at the instance of the defendants. The respondent herein is the plaintiff before the trial Court.

3.For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.

The brief facts which give rise to the instant Second Appeal are as follows:

4.The plaintiff purchased the suit property from one Duraisamy and Murugesan under a registered sale deed, dated 04.01.1977. Ever since the date of purchase, the plaintiff has been in actual physical possession and enjoyment of the same. After the purchase of the suit property, the plaintiff has put up a construction by borrowing loan from the Co-operative Society. In such circumstances, the plaintiff came to know about the filing of the suit in O.S.No.67 of 1976 between the defendants herein and one Ramalinga Chettiar and his son Duraisamy, who is the vendor of the plaintiff. While so, taking advantage of decree passed in O.S.No.67 of 1976, the defendants had attempted to take possession of the suit property. It is the submission of the plaintiff that the suit property referred to in O.S.No.67 of 1976 is not the property purchased by the plaintiff through the sale deed, dated 04.01.1977. The plaintiff further submitted that the obstruction petition filed by the plaintiff in E.A.No.129 of 1994 was allowed and stay of the execution was ordered. While so, the defendants claiming title under Will from one Chidambaram Chettiar, got decree against the said Duraisamy and Murugesan and filed execution petition and got delivery of property, except the suit item No.22 of the O.S.No.67 of 1976. It is the submission of the defendants that the said suit item No.22 include the portion of the suit property. The plaintiff further submits that only upon enmity between the plaintiff's son and the defendants, the defendants have been attempting to get delivery of the property under the premise of decree in O.S.No.67 of 1976, which pertains to some other property. Hence, the plaintiff has come forward with the present suit for declaration and for permanent injunction and for such other relief.

5.The said suit was resisted by the defendants by contending that the suit property is the portion of 22^nd item of the decree in O.S.No.67 of 1976. The plaintiff claims to have purchased the same from Duraisamy and Murugesan, who are the defendants 1 and 2 in O.S.No.67 of 1976