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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 31.01.2022

CORAM

THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

S.A.(MD) No.393 of 2020

and

CMP(MD) No.4699 of 2020

Veeramalai

..Appellant /Appellant / Plaintiff

vs.

1. Ponnambalam

2. Vembadi

..Respondents / Respondents /

Defendants

Prayer: Second Appeal filed under Section 100 of CPC., against the

Judgment and Decree, dated 03.01.2020, made in A.S. No.8 of 2019, on

the file of the Sub Court, Thuraiyur, confirming the judgment and

decree dated 31.01.2017 made in O.S. No.269 of 2008, on the file of

the District Munsif Court, Thuraiyur.

For Appellant : Mr.PT.S. Narendravasan

JUDGMENT

The present Second Appeal is directed against the Judgment and

Decree dated 03.01.2020, made in A.S. No.8 of 2019, on the file of

the Sub Court, Thuraiyur, confirming the judgment and decree dated

31.01.2017 made in O.S. No.269 of 2008, on the file of the District

Munsif Court, Thuraiyur.

2. For the sake of convenience, the parties are referred to as,

as described before the trial Court.

3.The case of the plaintiff, as per the averments made in the

plaint, in short, reads as follows:-

The father of the plaintiff and the father of the defendants

are brothers. After the demise of the father of the plaintiff in the

year 1949, the mother of the plaintiff–Mookaayee, married one

Muthukaruppan, who is the brother of her husband in the year 1950.

The defendants are the children born through the said Muthukaruppan.

Thus, the plaintiff and the defendants are uterine brothers. The

suit property belonged to one Peyan @ Ponnan, who is the grandfather

of the plaintiff and the defendants and he was is possession and

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enjoyment of the suit property and there were entries in the revenue

records in that regard. The said Peyan @ Ponnan died intestate 70

years ago. After his demise, the suit property was in joint

possession and enjoyment of the plaintiff, the defendants and the

father of the defendants, viz., Muthukaruppan and the father of the

defendants died on 09.10.2003. Thereafter, while the plaintiff and

the defendants are in possession and enjoyment of the suit property,

the plaintiff claimed his share in the suit property during the year

2008 and since the defendants denied for the same, the plaintiff

filed the present suit for partition.

4. In the written statement filed by the first defendant,

adopted by the second defendant, it is, inter alia, stated that the

averments in the plaint are false and baseless. The relief sought

for by the plaintiff is not maintainable. After the death of the

father of the plaintiff and the father of the defendants, the suit

property and other properties were partitioned and they were given

three equal shares in the presence of the Panchayatars. After

partition, they were in separate possession and enjoyment of the

same. The plaintiff sold his share to one Murugesa Gounder, by way

of oral sale. The defendants got the said property from the said

Murugesa Gounder, by way of oral sale 15 years ago. Hence, the

plaintiff is not entitled to any right over the suit property. From

06.08.1994, the defendants evicted the plaintiff and his heirs from

the suit property and the defendants are in possession and enjoyment

of the same. Therefore, the defendants are in adverse possession of

the suit property. When the plaintiff claimed amount from the

defendants based on the oral sale, the defendants denied the same

and hence, the plaintiff claimed partition of the suit property, as

though there was no partition at all with regard to the suit

property, which was already partitioned and filed the present suit

and prayed for the dismissal of the suit.

5.Before the trial Court, during trial, on the side of the

plaintiff, he examined himself as P.W.1 and 2 documents were marked

as Exs.A.1 and A.2. On the side of the defendants, D.W.1 to D.W.3

were examined an