Decided on February 16,1977

Mohamed Sahubdheen Appellant
Mavula Mohaideen And Ors. Respondents


A. Vardarajan, J. - (1.) The Plaintiff who lost in both the Courts below is the Appellant. He filed the suit for partition and separation of a 1/10th share in the plaint Schedule property, namely, 35 cents out of 40 cents in Sec. No. 468/1 in Kanchangudi Village, Ramanathapuram Taluk. The suit property originally belonged to one Segu Sadakku who had two sons, Naina Mohamed and Segu Mohamed. Naina Mohamed gifted one half of his half share to his second son, Mohamed Abubacker and the other half to his two daughters, Mohamed Sarammal and Habib Ammal. Those two daughters sold their half -share, in their father 's half -share to one Alia Pitchai Ambalam. Mohamed Abdubacker who got a half -share out of his father's half -share sold it to the first Respondent (first Defendant). The first Respondent purchased from one Mohamed Abubacker Nachiyar, wife of Segu Mohamed's second son Mohamed Mohideen a share in the property under exhibit B -3, dated 26th September, 1950. The first Respondent purchased the share of Segu Mohamed's daughter Mariam Beevi from her daughter Mathina Beevi under exhibit B -4, dated 29th May, 1950 and from her husband Mohamed Assana Labbai under exhibit. B -5, dated 29th May 1950. He purchased a share of Segu Mohamed's other son jalaludeen under exhibit B -6, dated llth November, 1950. He purchased from Mohamed Abubacker Nachiar, the daughter of Segu Mohamed, her share under a sale deed, which has not been produced. Mahaboob -ammal, the wife of Seen Midhar, another son of Segu Mohamed and her minor children, including the Plaintiff -Appellant, sold her husband's share to one Mohamed Aliar under exhibit B -7, dated 19th May, 1951. The Appellant purchased the share of his mother Mahaboobammal and sisters Kathija, Rabibudheen and Ravia Ammal under exhibit A -2, dated 9th August, 1968 out of his father's share namely, 84/960 and he claimed the other 12/960th share as the heir of his paternal uncle Shahul Hameed. Thus, the Appellant claimed 1/10th share in the property, namely, 84/960 and 12/960. Alia Pitchai Ambalam, the purchaser from Mohamed Sarammal and Habib Ammal filed Original Suit No. 343 of 1953 on the file of the District Munsif's Court, Ramanathapuram for partition of his share and obtained a preliminary decree. Exhibit B -16 is the certified copy of the judgment in that suit. In that suit, item 1 was the half shire in the present suit property. Under the final decree exhibit A -1, dated 30th November, 1962, Alla Pitchai Ambalam was allotted 5 cents in the suit survey number. Defendants 3 to 6 are the sons of Jalaludeen, the son of Segu Mohamed.
(2.) The defence of the first Respondent who alone contested the suit was that he has purchased the entire property except 5 cents allotted to Alla Pitchai Ambalam in the final decree exhibit, A -1 that he has acquired title even by adverse possession by being in possession of the property from 1950 in pursuance of the sales and that the present suit is barred by Order II Rule 2 Code of Civil Procedure on the ground that the Appellant who was a party to the earlier partition suit had not got the share allotted to him in that suit. The first Respondent further contended that the present suit is barred, by limitation, the same not having been filed within three years of attainment of majority by the Appellant. He claimed to hive sold some portions of the remaining 40 cents to Khaja Mohideen and others under exhibits B -10 to B -21 and contended that the suit is bad for non -joinder of his alienees under those documents.
(3.) The seventh Defendant who is the son of Mohamed Mohideen, the second son of Segu Mohamed claimed his father's share in the property. The Appellant is the son of Segu Mohamed's another son of Seeni Midhar Sahib. Shahual Hameed is the eldest son of Segu Mohamed.;

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