Partition deed's explicit allotments without common property reference bar subsequent partition claims on unspecified portions.

J U D G M E N T

The unsuccessful plaintiffs in the suit are the appellants. They filed a suit for partition claiming half share in the suit property and also for injunction restraining the defendants from disturbing the possession of the plaintiffs over the suit properties till a final partition is effected. The suit was dismissed by the Trial Court. The appeal was filed by the plaintiffs was also dismissed. Aggrieved by the concurrent finding, the plaintiffs have come before this Court.

2. According to the plaintiffs, the 1^st plaintiff is the brother of the deceased 1^st defendant. The 2^nd plaintiff is the son of the 1^st plaintiff. The 2^nd defendant is a purchaser of the suit property. The 3^rd defendant is the wife of the deceased 1^st defendant.

3. It was the case of the plaintiffs that after death of father of the

1^st plaintiff and 1^st defendant, there was a partition in the family on 25.11.1999. The ‘A’ Schedule Property in the Partition Deed was allotted to share of mother-Amasaiammal. The ‘B’ Schedule Property was allotted to the 1^st defendant and ‘C’ Schedule Property was allotted to the plaintiffs. According to the plaintiffs, father of 1^st plaintiff and 1^st defendant- Karuppanna Gounder owned 29 cents of land in R.S.No.412/6A and in the above said partition, 10 cents each was allotted to the 1^st plaintiff and 1^st defendant. The balance 9 cents was kept as a common property and it was mutually agreed that both the 1^st plaintiff and 1^st defendant shall enjoy the same. Recently, the plaintiffs came to know that the 1^st defendant executed a Sale Deed in favour of the 2^nd defendant in respect of 18 cents in S.F.No.412/6A over and above 10 cents allotted to him in the suit survey number. According to them, 9 cents kept as a common property has been sold by the 1^st defendant to the 2^nd defendant including the share of the plaintiffs. Therefore, the instant suit has been filed seeking the above said reliefs.

4. The defendants filed written statement and resisted the suit on the ground that the 1^st defendant was allotted 18 ½ cents in the suit survey number including entire suit property. The allegation in the plaint, as if 9 cents in the suit survey number was kept as a common property was specifically denied. Therefore, the defendants sought for dismissal of the suit on the ground that 9 cents in the suit survey number was not a common property and hence, the plaintiffs were not entitled to maintain a suit for partition.

5. Before the Trial Court, the 2ndplaintiff was examined as PW.1 and 2 documents were marked on the side of the plaintiffs as Exs.A1 and A2. The defendants 2 and 3 were examined as DW.1 and DW.2 respectively and 2 documents were marked on their side as Exs.B1 and B2.

6. The Trial Court on appreciation of evidence available on record, came to the conclusion that the plaintiffs failed to establish their case that 9 cents in suit survey number was kept as a common property and hence, dismissed the suit. Aggrieved by the same, the plaintiffs preferred first appeal in A.S.No.63 of 2015 on the file of Principal Subordinate Court, Erode. The First Appellate Court affirmed the findings of the Trial Court and dismissed the first appeal. Aggrieved by the concurrent finding, the plaintiffs have come before this Court.

7. The learned counsel appearing for the appellants would submit that the 1^st defendant was entitled to only 10 cents in the suit survey number and hence, he is not entitled to sell over and above 10 cents to 2^nd defendant. It is further submitted that at the time of partition, the entire extent in the suit property was not partitioned and the 1^st plaintiff and 1^st defendant were allotted t