2024:MHC:1787 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.04.2024 CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.NO.1918 OF 2001 and C.M.P.No.20226 of 2001 P.Sakthivel :Plaintiff/Appellant/Appellant .vs.

1.S.Chellapandi

2.Thoppammal(died)

3.Thottayam

4.P.Muniyandi

5.Kumarammal

6.Bommuthai

7.Panchavarnam (Respondents 5 to 7 are brought on record as legal representatives of the deceased second respondent as per order of this Court made in C.M.P.Nos.1950 and 1951 of 2019 in S.A.No.1918 of 2001, dated

25.09.2019) :Defendants/Respondents/

Respondents PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.8 of 2001, dated 14.09.2001, on the file of Additional Subordinate Judge, Dindigul,confirming the judgment and decree made in O.S.No.540 of 1998 dated 29.6.2000, on the file of II Additional District Munsif, Dindigul.

For Appellant :Mr.R.Nandakumar For Respondents :Mr.M.P.Senthil

1,3 and 4 For Respondent-2 :Died For Respondents :No appearance

5 to 7

JUDGMENT

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The Second Appeal is directed against the judgment and decree made in A.S.No.8 of 2001, dated 14.09.2001, confirming the judgment and decree made in O.S.No.540 of 1998, dated

29.6.2000, on the file of II Additional District Munsif, Dindigul. 2.The plaintiff in the suit is the appellant. The suit is filed for declaration of title and permanent injunction. The suit was dismissed by the trial Court and the findings of the trial Court were confirmed by the Ist Appellate Court. Aggrieved by the concurrent findings, the appellant/plaintiff has come by way of this Second Appeal.

3.According to the appellant/Plaintiff, the suit property was originally purchased by the plaintiff under Ex.A4, dated 6.3.1998 from one Aundivel and Kumarasamy. The said Aundivel and Kumarasamy got the suit property in an earlier partition. It was further stated by the appellant/plaintiff that the suit property was originally purchased by the plaintiff’s vendor’s brother Subbiah Naicker and his paternal uncle Krishnasamy Naicker under a registered sale deed, dated 10.5.1952, marked as Ex.A1. Later on, the suit property was mortgaged by the above said Subbaiah Naicker and Krishnasamy Naicker along with Plaintiff’s vendor in favour of Palanisamy Gounder under Ex.A2, dated 21.2.1962. It was further pleaded in the year 1972, there was an oral partition between Krishnasamy Naicker and his branch on one side and the plaintiff’s vendor’s branch on the other side. Thereafter, there was an oral partition in the year 1977 among the children of Kami Naicker and the property purchased by the appellant was allotted to the share of Aundivel and Kumarasamy. The said property which was allotted to the share of Aundivel and Kumarasamy was enjoyed by them till 6.3.1998 and then sold to the plaintiff under Ex.A4. Thus the plaintiff claimed title and possession over the suit property and lodged the suit.

4.The respondents herein filed a written statement and resisted the suit on the ground that their father Subbiah Naicker got separated from the family of Kami Naicker branch 50 years back and out of the self acquired income by rearing the cattles, he purchased the suit property along with Krishnasamy Naicker in the year 1952. It was further pleaded that the revenue documents like patta stood in the name of their father Subbiah Naicker. It was also claimed by the respondents that in the year 1968, when the property was mortgaged by their father, as per the request made by the mortgagee, the plainiff’s vendors have also joined in the mortgage document. However, the mortgage debt was cleared by the plaintiff’s father and the original document is in the custody of the defendants.The respondents/defendants specifically denied the oral partition in the year 1973 and 1977 pleaded by the appellant/plaintiff. It was also claimed that in UDR Scheme, plaintiff got patta for the suit property behind the back of the respondents and hence, the same could not advance the