S.A.(MD)No.407 of 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08.04.2022

CORAM:

THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD) No.407 of 2010

Balasubramanian

... Appellant/Appellant/2^nd Defendant

vs.

1.Vijayalakshmi (Died)

2.Thiruvannamalai Ammal

3.Amuthavalli

4.Boominathan

5.Paramakalyanasundram

6.Balasubramanian

7.Nagarani

8.Meenakumari

9.Harikrishnan

10.Subramania Nadar

.. Respondents/Respondents/

Plaintiffs & 1^st Defendant

[10^th respondent given up]

[Memo presented before the Court on 22.12.2021 is recorded

as R1 died and respondents 2 to 10 who are already on

record, are recorded as LRs of the deceased R1 vide Court

order dated 22.12.2021 made in S.A.(MD) No.407 of 2010]

Prayer :- Second Appeal filed under Section 100 of Civil Procedure

Code to set aside the judgment and decree dated 30.01.2010 made in

A.S.No.42 of 2006 on the file of Sub Court, Ambasamudram confirming

the judgment and decree dated 29.12.2005 made in O.S.No.44 of 2004

on the file of Principal District Munsif Court, Ambasamudram.

For Appellant :

Mr.A.Arumugam

For RR2 to 9

:

Mr.V.Meenakshi Sundaram

for Mr.D.Nallathambi

JUDGMENT

The 2^nd defendant in O.S No. 49 of 1996 on the file of Sub

Court, Ambasamudram (later transferred and renumbered as O.S No.44

of 2004 on the file of the Principal District Munsif Court,

1/6

https://hcservices.ecourts.gov.in/hcservices/

S.A.(MD)No.407 of 2010

Ambasamudram) is the appellant in this second appeal. The suit was

filed by respondents 1 to 9 herein for declaring that the suit

property belongs to them and for recovery of possession from the 1^st

defendant, namely, Subramania Nadar. During the pendency of the

suit, Subramania Nadar sold the suit property in favour of the

appellant who got impleaded as the 2^nd defendant on 03.10.1997.

2.The stand of the plaintiffs is as follows :

The suit property belonged to Chidambaram Pillai; the 1^st

plaintiff, Vijayalakshmi was his second wife, the first wife being

Gomathi @ Vannamuthammal; the other plaintiffs were born to

Vijayalakshmi through Chidambaram Pillai; Chidambaram Pillai

executed settlement deed dated 30.03.1959 settling the suit property

in favour of the plaintiffs ; Chidambaram Pillai and the 1^st

plaintiff were residing in the said property; Chidambaram Pillai

passed away on 25.06.1981; suppressing the said settlement deed,

Vannamuthammal, the 1^st wife of Chidambaram Pillai mortgaged the suit

property in favour of the 1^st defendant on 02.04.1987; upon coming

to know of the same, the 1^st plaintiff issued notice dated

22.07.1987 to the 1^st defendant cautioning him; the 1^st defendant

did not respond; on 26.06.1991, the 1^st defendant obtained a sale

deed from Vannamuthammal and her daughters; since Vannamuthammal and

her daughters did not have any right to alienate the suit property

in favour of the 1^st defendant, the plaintiffs filed the suit.

3.The plaintiffs filed pauper OP in the year 1991. It was

numbered as POP No.34 of 1992 on the file of the Sub Court, Tenkasi.

It was later transferred to Sub Court Ambasamudram and numbered as

O.S No.49 of 1996. During the pendency of the suit, the 2^nd

defendant purchased the suit property from the 1^st defendant and got

impleaded in the year 1997. It was then transferred to Principal

District Munsif Court, Ambasamudram. The 1^st defendant remained

exparte. The 2^nd defendant filed written statement controverting the

plaint averments. Based on the divergent pleadings, the trial court

framed the necessary issues. The 1^st plaintiff examined herself as

P.W.1. Ex.A1 to Ex.A5 were marked. The 1^st defendant though

remained exparte, entered the witness box in support of the 2^nd

defendant. He was examined as D.W.2. Three other witnesses were

examined on the side of the defendants. Ex.B1 to Ex.B20 were

marked. After consideration of the evidence o