- (1.)DEFENDANTS 1 and 2 in O.S.No.12 of 1983 are the appellants in A.S.No.347 of 1986.
(2.)THE case of the plaintiffs is as follows: THE first plaintiff's great great grand father Kandasami Aiyya belonged to Kandanpalayam. He came to Chidambaram more than two hundred years back and occupied a portion of A schedule item No.1 of the suit property. THE suit property was originally a waste land. Be built cottage and cultivated dry crops therein. Kandasami Aiyya was a pious and religious man. He belonged to Veerasaivam (lingayath). He was preaching Lingayath and he was residing therein. He had only son by name Vaithilinga Aiyya. After the death of Kandasami Aiyya, his son Vaithilinga Aiyya improved the place. He buried his father in the said place, built a samadhi, put up a lingam in the said place for his worship and called it as Adhilingam. He also built a well to supply water for irrigation purposes to the garden. He planted trees and formed flower garden and vegetable garden. He also served as poojari and had additional earnings. He got assignment of the lands in his favour and Vaithilinga Aiyya helps for his family. His only son was Apparswami Aiyya. He succeeded to item No.1 of the A schedule property. He was well versed in Tamil and Sanskrit and he had many devotees and disciples. He served as Gurukkal in many temples. He was also a mandhirik. He taught mandhirik to his disciples. He had clients all over India and he had large earnings out of the same. He built many of the buildings in item 1 of A schedule property. Patta was also transferred for item 1 of the property in his favour. He also acquired item No.2 of the A schedule property and got assignment in his favour. THE said place is now being used to bury the family members. A portion of item No.2 of the A schedule property was converted as nanja land. Since he was a mandhirik, he built four buildings in the suit place for his residence and to accommodate his visitors. He installed deities and put up a Sabha Mandapam in the suit place. He also installed idols referred to in the B schedule in the Sabha Mandapam. He also purchased 2 " kani of nanja lands at Thillainayagapuram later on sold by the plaintiffs and defendants 1 and 2 on 15.7.1981. Apparswami Iyer died in the year 1950. After his death his two sons Devasenathipathi Aiyar and Somasundaram Aiyya succeeded to the suit properties and were residing in item No.1 of A schedule property. THEy also enjoyed the suit properties jointly. Devasenathipathi Aiyyar died in the year 1956 leaving his two sons by name Vaithinatha Iyer and Panchanatha Iyer the first plaintiff. Vaithinatha Iyer died in the year 1952 without any issues. Somasundaram Aiyar also died in the year 1966 leaving his son Ganapathi Aiyar the first defendant. THE second defendant is the son of the first defendant. THE first plaintiff died. Plaintiffs 2 to 5 sons of the first plaintiff and brought as his legal representatives. THE plaintiff's family and defendants 1 and 2 are residing in the suit item No.1 of A schedule property and they are in enjoyment of the suit properties jointly. THEy are performing poojas for the deities and samadhi jointly. THE suit properties are now in joint possession and enjoyment of the plaintiffs and defendants 1 and 2. THE first plaintiff and the first defendant jointly built up the brick built compound wall all round the suit property in item 1 of A schedule. THE building bearing door No.11-A, 12, 12-A are put up by the tenants on a contract basis and as per the agreement after the stipulated contract period the same vest with the plaintiffs and defendants 1 and 2 for they had enjoyed the suit property as per the contract. Defendants 3 to 13 are the tenants and they are in occupation of the building on contractual basis. THE ownership vests with the plaintiffs and defendants 1 and 2 after the contract period. Defendants 14 and 15 are cultivating dry crops and nanja lands respectively. THE plaintiffs, legal heirs of one group are entitled to half share and defendants 1 and 2, legal heirs of other group are entitled of half share. B schedule properties are ancestral properties exclusively belonging to the plaintiffs and defendants 1 and 2 and their family members. THEy are movables stored in the Arthamandapam. Disputes arose between the plaintiff and defendants 1 and 2 in performing Annabishekam pooja in the Sabha Mandapam. So, it is impossible for the plaintiffs to enjoy the suit property jointly. Hence, the plaintiffs are constrained to file the suit for partition and separate possession of their half share in the suit properties.
The defendants filed written statement contending as follows: Vaithilinga Iyer had two wives. His first wife had a son and a daughter. They are Apparswami and Thillaimmal respectively. His second wife had four sons and a daughter. The sons are Muthuswami, Natesa Iyer, Ambalavana Iyer and Sivagurunatha Iyer. The daughter is Thaiyalnayaki. Natesa Iyer has got a son by name Subramanian. Ambalavana Iyer has got a son who is Thirunavukkarasu. This Thirunavukkarasu is the present Madathipathi. He is 32nd Madathipathi in the line of succession. Sivagurunatha Iyer had three sons viz., Ramalingam, Sambandam and Thandapani. Thandapani is looking after the Chidambaram Ambalathadi Mutt and Sambandam Pondicherry Mutt. Aathi Ambalathadi Swamigal mutt is an entity which is in existence since very long past. About 15 Madathipathis were buried in item one. Apparswami did not construct Sabamandapam and four buildings. The plaintiff is not jointly doing any pooja with the first defendant. Apparswami purchased some lands and his grandsons sold those lands and it has nothing to do with the affairs of the mutt. There are some bronze idols in the mutt. They are shown in the accounts submitted to the H.R. & C.E. Department. Several things of the mutt are with the plaintiffs. The mutt vessels are with the plaintiffs. The plaintiffs were never doing any pooja and the pooja is being done once in a day. During some important days, pooja will be done twice. House No.12 was built by Vaithilinga Iyer. House No.11-A was built by Apparswami. House No.11 was built by Somasundaram Iyer. House Nos.11-A and 12-A are possessed by Dhandapani son of Sivagurunatha Iyer. It is in their possession for more than 45 years. It is their property. House No.12 is occupied by one Duraiswami. This house fell down. Ganapathi Iyer requested Duraiswami to reconstruct door No.12 under an agreement for 21 years. Door No.11 is occupied by Ganapathi Iyer. Door No.10 is possessed by the plaintiff. He has put two tenants and he is collecting the rents. The plaintiff have no right to ask for partition and the plaintiffs are not entitled to partition.

H defendant filed written statement contending as follows: THe Deputy Commissioner, H.R. & C.E. Department passed order Holding tHat tHere are separate temples for Sri Vinayagar, Sri Subramaniar, Sri Natarajar, Sri Manickavasagar, Sri Perumal, Sri DaksHinamoortHy, etc. in existence along witH SannatHi tHat it Has been so developed as a regular temple witH all tHe deities. THe first respondent preferred appeal and tHe order of tHe Deputy Commissioner was set aside and tHe matter was remanded to tHe file of tHe Deputy Commissioner and finally tHe Deputy Commissioner passed orders on merits and tHe petition was dismissed. THe order of tHe Deputy Commissioner is final and binding on tHe defendants. THe suit filed by tHe plaintiffs is not maintainable.

Defendants 1 to 4 in O.S.No.3 of 1987 are the appellants in A.S.No.213 of 1990. That suit was filed by Sambandam and Dhandapani who are the sons of Sivagurunatha son of Vaithilinga through his second wife Sivakami Ammal for partition and separate possession of their share.

The case of the plaintiffs in that suit is as follows: The plaintiffs are brothers and they are sons of Sivagurunathan. Sivagurunathan is one of the four sons of one Vaithilinga Ayyar, through his second wife Sivakami Ammal. The other three sons of Vaithilinga Ayyar are Muthusamy Swamigal, Natesa Ayyar and Ambalavanan and they are dead. Muthusamy Swamigal became an ascetic and he left the family. Nates Iyer had only one son by name Subramamam and he is seventh defendant herein. Ambalavana had only son by name Thirunavukkarasu Swamigal and he is also an ascetic and he is the present Madathipathi of Ambalathadi Madam at Pondicherry. He is the eighth defendant herein. By his first wife Vaithilinga Iyer had only one son by name Apparsamy Ayyar who is now no more. Apparsamy Ayyar was survived by his two sons Devasenapathy Ayyar and Somasundara Ayyar and they are also dead. Devasenathipathi was survived by his only son Panchanatha Ayyar who died in 1984. Defendants 1 to 4 herein are the sons of the said Panchanatha Ayyar who died in 1984. Defendants 1 to 4 herein are the sons of the said Panchanatha Ayyar. Somasundara the younger son of Apparsamy Iyer died in 1966 and he was survived by his only son Ganapathy Ayyar and he is the fifth defendant herein. His undivided son Adiyapatham is the sixth defendant in this suit. Item 1 of plaint A schedule properties consists of a site with buildings thereon. Item 2 of the plaint A schedule consists of two items of lands situate in Pallipadai village, Chidambaram taluk. Kanagasabai, a resident of Kandapalayam, was a religious mined person. He belonged to Veerasaivam (Lingayat). He came to Chidambaram and took up his residence in item 1 of the plaint A schedule. After his death, his only son Vaithilinga Ayyar inherited the said item. Item 2 was acquired by Vaithilinga and both items in A schedule were owned and enjoyed during his life time. Vaithilinga died in or about 1935 and he was survived by his second wife Sivakami and his five sons by name Apparsamy and Muthsamy Natesa, Ambalavana and Sivagurunatha through his second wife. B schedule properties are mostly idols acquired and worshipped by Vaithilinga and those idols along with various other items of property comprised in B schedule were also owned, possessed and enjoyed by Vaithilinga. There is a samadhi and a Sabha Mandapam in item 1 of A schedule and the same had been in existence even during the life time of Vaithilinga. Guru pooja were being done by the family members. On the death of Vaithilinga, all his five sons became entitled to 1/5 share each in the plaint A and B schedule properties since the properties were the separate and exclusive properties of Vaithilingam. Sivakami was being maintained by the members of the family as she was only entitled to maintenance from out of the family assets. The fifth defendant is in actual possession of the most of the suit properties and the plaintiffs were also managing the suit properties along with the fifth defendant and had been in receipt of their share of income. The properties remain in joint possession of the members of the first wife's sons and the second wife's sons. After the death of Vaithilinga, his sons were managing the affairs of the family with the assistance of younger members. In view of the fact that Muthusamy, one of the sons of Vaithilinga died as a Brahmachari, the other three brothers became entitled to his share, and after the death of Natesa, his only son Subramaniam the 7th defendant became entitled to the share of Natesa Ayyar. After Ambalavana's death, his son Thirunavukkarasu Swamigal the 8th defendant became entitled to his father's share. Plaintiffs had another brother by name Ramalingam and he is not heard of for the past 15 years and he must be deemed to be dead. According to the law governing the parties, defendants 1 to 6 together will be entitled to 1/5 share, and out of his 1/5 share defendants 1 to 4 will be entitled to 1/10 share, and defendants 5 and 6 to 1/10 share. The seventh defendant is entitled to 4/15 share, the eighth defendant to 4/15 share and the plaintiffs are entitled to 4/15 share Suppressing the fact that the plaintiffs are entitled to a share in the suit properties, defendants 1 to 4 herein instituted a suit in O.S.No.12 of 1983 on the file of this Court and obtained a decree for half share in the suit properties. In that suit, the 5th defendant herein had stated that the plaintiffs are entitled to a share in the suit properties and that the suit was bad for non joinder of necessary parties they were not added as parties and the suit was decreed for partition and separate possession. The plaintiffs are entitled to their share in the suit properties. Hence, the suit is filed for partition and separate possession of their share in the suit properties.

(3.)THE first defendant filed written statement contending as follows: Suit item 1 did not belong to Kanagasabai nor it was inherited by Vaithilinga Ayyar. Vaithilinga Ayyar never made improvements in the property. Vaithilinga Ayyar never married Sivakami as his second wife. THE children alleged to have born to them are not the sons of Vaithilinga Ayyar. Vaithilinga Ayyar did not own and possess B schedule properties. He never performed any guru pooja. It is not true that on the death of Vaithilinga all his five sons became entitled to 1/5 share each in plaint A and B schedule properties. THE suit properties belonged to Apparsamy Ayyar and on his death, the properties devolved upon his son Devasenathipathi who was performing the poojas and after the death of Devasenathipathi his son Panchanatha Ayyar and on his death, defendants 1 to 4 are entitled to the properties and were performing poojas and other religious functions. THE plaintiffs and defendants 7 and 8 are not the second wife's sons of Vaithilinga Ayyar. THEy never lived with the family of defendants 1 to 4 or defendants 5 to 6. THEy never exercised, claimed or asserted any right or title to the suit property. This defendant filed O.S.No.12 of 1983 on the file of this Court and obtained a decree for half share in the suit property against defendants 5 and 6 and the appeal preferred by defendants 5 and 6 A.S.No.347 of 1986 is pending. Defendants 5 and 6 are estopped and barred from attacking the decree in O.S.No.12 of 1983.
H defendant filed written statement contending as follows: GanapatHy Iyer son of Somasundara Iyer entered into an agreement of lease in respect of tHe property on montHly rent basis. He used to collect rent in advance. THis defendant being a tenant is entitled to protection under tHe City Tenants Protection Act. THis defendant is a tenant under GanapatHy Iyer and tHe tenancy is binding on tHe parties and tHe defendant need not surrender possession and His possession could be protected.

On tHe above pleadings, tHe trial court framed issues, tried tHe suits and decreed botH tHe suits for partition and separate possession.