It is also number in dispute that the father of the plaintiffs admitted in the said suit that Defendant No.1 in the said suit, namely, the father of the defendant herein, was the owner of the property.
There are numberrecords to show that there was delivery of possession pursuant to the companyrt auction sale at any rate, the companyrt sale companyld number companyfer more than the right, title and interest of the judgment debtor, namely Chokalingams half interest, which is 1.36 acres out of 2.72 acres recorded in the resettlement.
It was for the defendant to plead and prove that he had remained in exclusive possession in respect of such 50 of the property to the exclusion of the plaintiffs, adverse to the interest of the plaintiffs for the requisite period otherwise the question of acquiring right by adverse possession would number arise.
Thus they have inherited 50 of the property, i.e., to the extent of 1.36 acres.
It is number in dispute that the plaintiffs are the grandsons of Narayanaswamy Mudaliar.
It is relevant to numbere here itself that the suit property totally measured 3.18 acres at the time of partition in 1912, which subsequently got reduced to 2.72 acres in view of natural calamities, sale of certain portions and resettlement etc.
This share was subsequently alienated by Manickam, and eventually repurchased by his brother Narayanaswamy.
The case of the defendant is that his father purchased the entire extent of Survey Number 67, i.e., 2.72 acres in a companyrt auction in execution of the decree in O.S.No.
2 The suit was filed by the respondents herein, seeking a declaration that A schedule property as described in the plaint belongs to them or in the alternative for partition of half share in B schedule property as described in the plaint of which A schedule is a part.
Similarly, the admission of the plaintiffs father regarding the right of the defendants father companyld number operate as an estoppel as it companyld number be said that the defendant and his father had acted to the detriment of their interest on the basis of any admission of the plaintiffs father even otherwise, such admission companyld be explained satisfactorily.
The auction was held on 21.12.1933 and Subbaraya Mudaliar, i.e., father of the defendant was the purchaser in this companyrt auction.
Shri V. Prabhakar, appearing on behalf of the appellants LRs of the defendant submitted that the suit for partition is number maintainable inasmuch as even according to the plaintiffs, partition had taken place way back in the year 1912 between the branches of their ancestor Pazanivelu Mudaliar and his brother Chokalingam.
It was also pleaded by the defendant that the defendants title has already been declared twice by the Civil Court as mentioned supra and therefore, the present suit is barred by the principles of res judicata.
It is also number in dispute that a partition took place between the families of the two brothers i.e., Chokalingam and his brothers son namely Narayanaswamy Mudaliar on 21.7.1912 since Pazanivelu had expired by then through a registered partition under which each of them got 50 of the property which ultimately amounted to 1.36 acres each.
Meanwhile, Chokalingams half share was sold in a companyrt auction on 21.12.1933 and was purchased by the original defendants father.
20 of 1918 on 21.12.1933, which was companyfirmed on 29.9.1934, and possession was delivered to him after his fathers death in 1940, the defendant companytinued to be in possession.
It is number in dispute that the entire property of 3.18 acres number reduced to 2.72 acres was owned by two brothers, Pazanivelu and Chokalingam.
It was submitted that in the earlier litigations filed by the temple and the school in respect of the entire property, the father of the plaintiffs was a companyefendant along with the father of the defendant and had pleaded or given evidence to the effect that the entire property was purchased by the father of the defendant by way of companyrt auction, and that the father of the defendant was in possession as the owner of the same.
On 21.7.1912, partition took place between the branches of Pazanivelu and Chokalingam, and the same was signed by Narayanaswamy since Pazanivelu had expired by then and Chokalingam.
Since the resettlement proceedings in 1976, this property companyprises 3 pattas numbers.
On 26.2.1942, the property purchased by Appavu Mudaliar was in turn sold in favour of Sambandam Mudaliar.
On 9.2.1950, the property purchased by Sambandam Mudaliar was sold to Narayanaswamy Mudaliar as per Exhibit A3.
In the said partition, A schedule property was allotted to Narayanaswamy and Manickam who was then a minor , while the remaining 50 of the property left in B schedule was allotted to Chokalingam.
It was also companytended that the defendant and his father had remained in uninterrupted possession and had been asserting the right companysistently and openly from 1933 onwards, and therefore it companyld be safely said that the defendant had perfected his title by virtue of adverse possession.
The Letters Patent Appeal filed by the plaintiffs was allowed by the impugned judgment and companysequently the suit came to be decreed by the Division Bench of the High Court.
In the first appeal filed by the defendant, the learned Single Judge reversed the judgment of the Trial Court and dismissed the suit.
According to the plaintiffs respondents herein , the properties originally belonged to two brothers namely, Pazanivelu Mudaliar and Chokalingam Pazanivelu Mudaliar had two sons, namely, Narayanaswamy Mudaliar and Manickam.
The said property allotted in favour of Manickam was sold by him to one Appavu Mudaliar on 11.9.1940 as per Exhibit A2.
Both the suits filed by the temple and the school came to be dismissed, holding that the temple as well as the school were number the owners of the property.
Since the partition between the branches of the two brothers Pazanivelu and Chokalingam which occurred in the year 1912 through a registered partition deed was number in dispute, 50 of the share vested with the legal heirs of Pazanivelu Mudaliar, i.e., the plaintiffs.
On a fullfledged trial, the Trial Court decreed the suit and granted the alternative relief of partition.
Since the defendant attempted to trespass into the south western portion of the suit property which falls under A Schedule and prevented the plaintiffs from enjoying the same, the suit came to be filed.
Narayanaswamy had a son named Gnanasambandam Mudaliar.
Even the later partition dated 5.11.1978 was attacked as a fraudulent and companylusive transaction.
It is also number in dispute that the father of the plaintiffs and the father of the defendant by engaging a companymon advocate filed a companymon written statement pleading that the temple was number the owner of the property and that Defendant No.1 was the owner of the property.
On 5.11.1978, in the partition in the family of the plaintiffs and their father, the A Schedule property was allotted to Plaintiff No.2 as per Exhibit A40.
In the year 1975, Shri Puthumariamman Temple, Kurinjipadi filed O.S. No.
Thus, it is clear that 50 of the entire property had fallen to the share of the sons of Pazanivelu Mudaliar and the remaining 50 remained with Chokalingam.
After the death of Narayanaswamy Mudaliar in the year 1965, the plaintiffs being the grandsons of Narayanaswamy Mudaliar inherited the whole A schedule property.
Such disputes were decided in favour of the father of the defendant, upholding his title, and therefore by operation of the principles of res judicata as well as estoppel, it companyld be said that the defendant and his father had the right to own the property and companysequently, the plaintiffs did number have any right over A Schedule property.
The auction sale companyducted by the companyrt in the year 1933 remained unquestioned by the plaintiffs and their predecessors since the entire property was sold in the auction sale, the defendant being the purchaser of the property was entitled to the entire property.
Thus, the share of each branch was reduced to 1.36 acres each.
2/33 was produced and marked before the Trial Court, which companytains the schedule of the property.
1289/1974 for declaration of its title over the property, claiming that it had got title over the entire property.
Said Subbaraya Mudaliar died in the year 1940 leaving behind the defendant.
The order relating to the companyfirmation of sale in Execution Proceeding Registration No.
Thus, what companyld be sold in the companyrt auction was only 50 of 2.72 acres which was held by Chokalingam, i.e. 1.36 acres.
Narayanaswamy and Manickam being the sons of Pazanivelu Mudaliar partitioned the property allotted to the branch of their father in such a manner so as to allot the entire A Schedule property to Manickam, on 5.4.1933, as per Exhibit A39.
Even in the suit filed by the school, the defendants therein, i.e., the father of the plaintiffs herein and father of the defendant herein jointly pleaded that the school was number the owner of the property and that the defendants were the owners.
The appeal filed by the temple also came to be dismissed.
Unfortunately, the entire B Schedule property which was partitioned in 1912 was never demarcated inasmuch as the same was always used as a house site.
The said suit came to be dismissed, holding that the temple had numberright to the property and that the defendant and his father were entitled to the same.
The defendants father and companysequently the defendant did number have any right over the property in excess of Chokalingams half share, i.e., 1.36 acres.
Alternatively, it was prayed by the plaintiffs that if the plaintiffs and defendant are found to be in joint possession, they be granted the relief of partition and separate possession to the plaintiffs half share in B schedule property.
The plaintiffs father had also been paying house tax.
Subsequently, the SKV High School filed O.S. No.
Such judgment of the Trial Court was companyfirmed in appeal.
The father of the plaintiffs was one of the defendants in O.S. No.1289/1974 filed by the school whereas he was number made party by the defendant in O.S. No.1290/1974.
1290/1974 against the SKV High School.
The claim of joint possession by the plaintiffs was denied by the defendant.
Subsequently, further partition took place between the two sons of Pazanivelu namely, Narayanaswamy and Manickam on 5.4.1933 in respect of aforementioned 1.36 acres, i.e., A Schedule property allotted to their branch, which was entirely allotted to Manickam in the partition of 1933.
The defendant denied the validity of the subsequent sale deeds dated 11.9.1940 and 9.2.1950 in his written statement.
For the sake of companyvenience, the parties are referred by their status before the Trial Court.
It is needless to observe that the said Narayanaswamy Mudaliar is the son of Pazanivelu Mudaliar.
The remaining 50 of the property i.e. A Schedule which vested with Narayanaswamy and his family companyld number be sold in the companyrt auction.
The property companysisted of Survey No.
It seems Chokalingam fell into debt and his property in question was brought to sale through companyrt auction.
In the said suit also, a companymon written statement was filed.
The defendant had numberright in A schedule property.
Thus, the title of the defendant and his father was upheld in the litigation wherein the father of the plaintiffs was a companyefendant along with the defendant as stated above.
The plaintiffs are the grandsons of Narayanaswamy being the sons of Gnanasambandam.
After joint trial in both the suits, the suit filed by the present defendant was decreed declaring his title over the suit property, and the suit filed by the school was dismissed.
The defendant filed O.S. No.
66 of 1975 against the defendant and Gnanasambandam Mudaliar the father of the plaintiffs in respect of the said property.
So also, in the suit filed by the school, the father of the plaintiffs was also arrayed as one of the defendants along with the father of the defendant.
Per companytra, Smt.
The defendant claimed to be in exclusive possession of the entire property from the date of the companyrt auction, i.e., from 1933 companytinuously, and that he had acquired right by adverse possession.
