A.S.(MD)No.175 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 08.04.2022

CORAM

THE HONOURABLE MS.JUSTICE R.N.MANJULA

A.S.(MD)No.175 of 2020

Vijayalakshmi

... Appellant/2^nd Defendant

Vs.

1.Sangaiah

2.Naachammai

3.Annapoornam

... Respondents 1 to 3/Plaintiffs

4.Ponnalagu

... 4^th Respondent/1^st Defendant

Prayer : Appeal Suit filed under Section 96 of Civil Procedure

Code, against the judgment and decree dated 26.02.2020 in O.S.No.61

of 2015 on the file of the learned Additional District and Sessions

Judge, Sivagangai, insofar as preliminary decree granting 1/4^th share

to the plaintiffs in the suit schedule properties.

For Appellant

: Mr.VR.Shanmuganathan

For Respondents : Mr.D.Srinivasa Ragavan for R1 to R3

No appearance for R4

JUDGMENT

This Appeal Suit has been preferred challenging the judgment and

decree of the learned Additional District and Sessions Judge,

Sivagangai, dated 26.02.2020 made in O.S.No.61 of 2015.

2.The appellant is the second defendant in the suit; the plaintiffs

have filed the suit for partition and declaration that the sale deed

executed in favour of the second defendant dated 19.05.2006 is null

and void; the plaintiffs and the first defendant are siblings and

children of one Vellai; the suit property belonged to the said

Vellai and he was in enjoyment of the same; he died intestate on

01.09.2003; his wife/Pappathi predeceased him; since the plaintiffs

and the first defendant are children of the deceased Vellai, they

are entitled to inherit the properties of their father/Vellai;

however, the first defendant sold the first item of the suit

property in favour of the second defendant on 19.05.2006 without the

knowledge of the plaintiffs; when it came to the knowledge of the

plaintiffs, they have filed the suit for declaration that the said

sale deed is null and void and also for the relief of partition and

separate possession of their 3/4^th share in the suit property;

3.The first defendant remained ex-parte; the second defendant

resisted the suit by filing written statement stating that the first

item of the suit property was not enjoyed by the plaintiffs and

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A.S.(MD)No.175 of 2020

first defendant jointly; out of the ancestral properties belonged to

Vellai, the first item of the suit property was given to the share

of the first defendant and from whom, the second respondent

purchased the same; so far as the second defendant is concerned, he

is a bonafide purchaser for value; after having sold the property in

favour of the second defendant, the first defendant now colluded

with the plaintiffs and filed the suit; after taking possession of

the first item of the suit property, the second defendant had made

lot of improvements on the same; since the first defendant was

enjoying the first item of the suit property by ousting the other

sharers namely, the plaintiffs and also got it to his share, the

sale deed executed in favour of the second defendant on 19.05.2006

is valid and enforceable; since the suit had been filed after nine

years from the date of sale, it is barred by limitation; hence, the

suit should be dismissed as against the first item of the suit

property.

4.Basing of the above pleadings, the learned trial Judge framed the

following issues:-

“1.Whether the plaintiffs are entitled for partition as

claimed for?

2.Whether the sale deed dated 19.05.2006 executed by

the 1^st defendant in favour of the 2^nd defendant is null

and void?

3.Whether there was a earlier partition?

4.Whether the suit is bad for not adding all the

properties of Vellai, the father of the plaintiffs?

5.To what other reliefs are the plaintiffs entitled to?”

5.During the course of trial, on the side of the plaintiffs, two

witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A7 were

marked. On the side of the defendant, one witness was examined as

D.W.1 and Exs.B1 to B8