A. AROKYADOSS Vs. V. RADHAKRISHNAN

JUDGEMENT

(1.) The sole defendant in O.S. No. 38 of 2005 on the file of Principal Subordinate Judge, Villupuram is the appellant in this second appeal. The appellant is aggrieved by the decree and judgment dated 14.09.2009 passed in A.S. No. 6 of 2009 on the file of learned Principal District Judge, Villupuram reversing the judgment and decree dated 29.11.2008 made in O.S. No. 38 of 2005 on the file of the learned Principal Subordinate Judge, Villupuram.

(2.) For the sake of convenience, the parties shall be referred to as "Plaintiffs" and "Defendant" as has been arrayed before the trial court.

(3.) The Plaintiffs have filed the suit contending that their grand father Arumuga Gounder was the owner of the suit property and other properties. The said Arumuga Gounder had three sons namely Venkatasamy, Panchatsaram and Kandasamy. The plaintiffs are sons of Venkatasamy, the eldest son of Arumuga Gounder. After the demise of Arumuga Gounder, his three sons have divided the properties left by his father by entering into a registered partition deed dated 30.11.1977. At the time when the partition deed came to be executed, the plaintiffs were minors and in the partition, the plaintiffs were represented by their father and natural guardian Venkatasamy. As per the partition deed, "A" schedule properties were allotted to Venkatasamy and the plaintiffs herein. The property, which is the subject matter of the suit is described as first item in "A" Schedule in the partition deed, which is comprised in Survey No.35/3 measuring 1.82 cents. According to the plaintiffs, the said partition deed was acted upon and the parties to the partition have been in possession and enjoyment of their respective shares. After the plaintiffs attained majority, they, along with their father, executed a registered sale deed dated 13.09.1999 in favour of one V. Devi by which land measuring 30 cents out of 1.82 cents have been alienated. According to the plaintiffs, notwithstanding the above sale, their father Venkatasamy had unilaterally sold 33 cents of land in the year 2001, without consulting the plaintiffs, to one Karthikeyan, son of his younger brother. However, the plaintiffs did not raise any objection inasmuch as the plaintiffs' father also has a share in the property and that the plaintiffs were under the impression that the sale made to Karthikeyan by their father is from and out of the share which he is entitled to. It is also the case of the plaintiffs that their father mortgaged the suit property with Agriculture Develpment Bank for purchase of tractor. While so, on 20.08.2003, the plaintiffs' father died and it is the plaintiffs who have discharged the loan availed for purchase of tractor. While facts are so, the defendant, who is an utter stranger to the suit property, attempted to interfere with the right of the plaintiffs over the suit property by making a false claim that their father had sold away the suit property in his favour. According to the plaintiffs, even if there was a sale in favour of the defendant, it will not bind the plaintiffs in any manner inasmuch as the plaintiffs father has no right to convey the suit property in favour of the defendant. This is more so that the father of the plaintiffs' had already sold a portion of the property which fell to his share in favour of one Karthikeyan. Therefore, the plaintiffs have filed the suit for the relief of declaration to declare that they are the absolute owner of the suit property and for a consequential injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs.