BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 09.04.2025 DELIVERED ON : 13.05.2025 CORAM THE HON'BLE MR.JUSTICE G.ILANGOVAN S.A.(MD).No.315 of 2007 Kasinathan ... Appellant/Appellant/2^nd Defendant Vs.

1.Kandasamy Thevar ... 1^st Respondent/1^st Respondent/Plaintiff

2.Karuppanan 3.Ramanathan 4.Nachammai

5.Chellayee ... Respondents 2 to 5/Respondents 2 to 5/

Defendants 2 to 5 PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree of the learned Sub Judge, Devakkottai dated 17.11.2005 in A.S.No.24 of 2005 confirming the Judgment and Decree of the learned District Munsif, Devakottai in O.S.No.19 of 2004 dated 07.02.2005 with costs.

For Appellant : Mr.R.Sundar Srinivasan For Respondents : Mr.V.R.Shanmuganathan for R1 R2 – No Appearance R3 to R5 – Exparte

JUDGMENT

This appeal has been filed against the Judgment and Decree of the learned Sub Judge, Devakkottai, dated 17.11.2005 in A.S.No.24 of 2005 confirming the Judgment and Decree of the learned District Munsif, Devakottai in O.S.No.19 of 2004 dated 07.02.2005.

2.The facts in brief:

The suit property comprised in S.No.24/1 having an extend of 4 acre 29 cents, was originally belonged to one Velu ambalam. He died around the year 1959. In a partition that took place between the children of Velu amabalam, the suit property and the property situated on the south were allotted to the share of the plaintiff. On the west one Subramanian was allotted. On the east Rethina Thevar was allotted. Now after sub division, the properties are comprised in S.No.24/1A. Out of the property allotted to the plaintiff, he sold 60 cents in favour of Nachi Thevar, on 17.10.1972. Nachi Thevar is the father of the defendant herein.

3.In the sale deed specific Boundary is mentioned as the suit property and east west road on the north. Apart from that it is also specifically mentioned that the suit property is retained by the plaintiff, ever since, the plaintiff is in possession and enjoyment.

4.The second defendant filed a suit in O.S.No.127 of 1998 in respect of 60 cents against one Indira and others for declaration and permanent injunction. In that suit, the second defendant has specifically stated that the property was purchased by his father Nachi Thevar. After that he is in possession. The suit was decreed on 25.06.2001. Except the

60 cents the defendant has no right in respect of other properties.

5.An attempt was made by the defendants to prevent the plaintiff from irrigating the lands. On enquiry it was found that in the Revenue Records patta has been wrongly issued in the name of the second defendant for S.No.24/1A1. Against which, the plaintiff filed appeal before the Revenue Divisional Officer, Devakottai and still it is pending. Taking advantage of issue of the patta wrongly, they are claiming right over the property. At the time of sale the plaintiff and defendants' father identified 60 cents. So the suit is laid for declaration and permanent injunction.

6.The brief averments of the written statement filed by the first defendant:

The suit property is comprised in New S.No.24/1A2 measuring about 28 cents. In the partition only 60 cents was allotted to the plaintiff and not separately in respect of the suit property and other properties situated in S.No.24/1A. The western property, which belongs to Subramanian, was purchased by the first defendant on 07.06.1973. The cause of action stated in the plaint is denied. In the sale deed, the old east-west road was mentioned as Northern Boundary. It was situated in S.No.21/2, measuring about 10 cents. So it is denied that the suit property was retained by the plaintiff at the time of selling 60 cents to Nachi Thevar.

7.Nachi Thevar executed a Will on 19.06.1978 in favour of the first defendant. A road was formed in the 60 cents and subdivisions were made. On the north of the road, land measuring about 28 cents was subdivided as 24/1A2. The southern property of the road is subdivided as S.No.24/1A6 and