BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2024 CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.No.1559 of 2003

1.Raghavan (died)

2.Lakshmi Ammal (died)

3.Gangalakshmi

4.Shriram ... Appellants -vs-

1.Rajesh

2.Sivakami

3.Kanagavelan ... Respondents (Appellants 3 and 4 and Respondents 2 and 3 are brought on record as LRs.of the deceased

1st Appellant and 2nd Appellant)

PRAYER: Appeal against the judgment and decree, dated 29.07.2003, passed in A.S.No.25 of 2000 on the file of I Additional Sub-Court, Madurai, reversing the judgment and decree, dated 14.06.1999, passed in O.S.No.129 of 1998 on the file of District Munsif Court, Madurai Taluk.

For Appellants : Mr.M.Saravanan For Respondent 1 : Mr.V.George Raja For Respondent 2 & 3 : No appearance

JUDGMENT

The defendants in the suit are the appellants. The first respondent herein filed a suit for declaration of title and permanent injunction. The suit was dismissed by the trial Court. On appeal filed by the plaintiff, the first appellate Court reversed the findings of the trial Court and granted a decree for declaration and injunction, as prayed for. Aggrieved by the same, the defendants have come by way of this Second Appeal.

2. According to the first respondent/plaintiff, the suit property originally belonged to one Kamatchi Pillai and his sons. They entered into a registered partition deed on 27.10.1976, wherein each party was allotted a share and the E-Schedule properties to the original partition deed were kept as common properties. The said Kamatchi Pillai died during July,1993, and, after his death, there was an oral partition among his sons. The suit property, which is situated on the northern side, in Survey No.24/6B was allotted to the share of one of sons of Kamatchi Pillai, namely, Loganathan. The plaintiff purchased the said property from Loganathan under a sale deed, dated 08.08.1984, which is marked as Ex.A-2. The defendants tried to purchase the suit property from the vendor of the plaintiff for a lesser price, but he refused to sell the suit property to them. Aggrieved by the same, the defendants attempted to interfere with the possession of the plaintiff and hence the above said suit was filed for declaration of title and injunction.

3. The defendants resisted the suit, by denying the title as well as possession of the plaintiff over the suit property. It was their case that after the death of Kamatchi Pillai, the common property, described in E-Schedule to the original partition deed, was divided among his sons and the suit property was allotted to the share of another son of Kamatchi Pillai, namely, Shanmugavelu. The second defendant purchased the suit property from Shanmugavelu on 16.02.1991 under Ex.B-1 and from that date onwards, the second defendant had been in possession and enjoyment of the suit property. Thus, the defendants claimed title and possession over the suit property and sought for dismissal of the suit.

4. Before the trial Court, the plaintiff's mother and guardian was examined as P.W.1. The attestor to the sale deed in favour of the plaintiff was examined as P.W.2. Yet another witness was examined as P.W.3. The defendants 1 and 2 were examined as D.Ws.1 and 2. On behalf of the plaintiff, 8 documents were marked as Exs.A-1 to A-8 and on behalf of the defendants, 6 documents were marked as Exs.B-1 to B-6.

5. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff was not entitled for declaration of title and injunction. Hence, the suit was dismissed by the trial Court. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal in A.S.No.25 of 2000 on the file of I Additional Sub-Court, Madurai. The first appellate Court, on re-appreciation of the evidence available on record, came to the conclusion that the oral partition and allotment of the suit property to the share of the plaintiff's vendor - Loganathan was proved and consequently upheld the title of t