Mohan M. Shantanagoudar, J. - (1.) The legal representatives of the original defendant in O.S No.45/85 on the file of the Subordinate Judge, Cuddalore are the appellants before this Court. For the sake of convenience, the parties are referred by their status before the Trial Court.
(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. 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. Narayanaswamy had a son named Gnanasambandam Mudaliar. The plaintiffs are the grandsons of Narayanaswamy being the sons of Gnanasambandam. 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. 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 is relevant to note 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. Thus, the share of each branch was reduced to 1.36 acres each. The property consisted of Survey No. 67. 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 A-39. The said property allotted in favour of Manickam was sold by him to one Appavu Mudaliar on 11.9.1940 as per Exhibit A-2. 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 A-3. After the death of Narayanaswamy Mudaliar in the year 1965, the plaintiffs being the grandsons of Narayanaswamy Mudaliar inherited the whole 'A schedule' property. Meanwhile, Chokalingam's half share was sold in a court auction on 21.12.1933 and was purchased by the original defendant's father. There are no records to show that there was delivery of possession pursuant to the court auction sale; at any rate, the court sale could not confer more than the right, title and interest of the judgment debtor, namely Chokalingam's half interest, which is 1.36 acres out of 2.72 acres recorded in the resettlement. 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. Since the resettlement proceedings in 1976, this property comprises 3 pattas numbers. The plaintiffs' father had also been paying house tax. The defendant had no right in 'A schedule' property. The defendant's father and consequently the defendant did not have any right over the property in excess of Chokalingam's half share, i.e., 1.36 acres. 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 A-40. 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. The case of the defendant is that his father purchased the entire extent of Survey Number 67, i.e., 2.72 acres in a court auction (in execution of the decree in O.S.No. 20 of 1918) on 21.12.1933, which was confirmed on 29.9.1934, and possession was delivered to him; after his father's death in 1940, the defendant continued to be in possession. In the year 1975, Shri Puthumariamman Temple, Kurinjipadi filed O.S. No. 66 of 1975 against the defendant and Gnanasambandam Mudaliar (the father of the plaintiffs) in respect of the said property. The said suit came to be dismissed, holding that the temple had no right to the property and that the defendant and his father were entitled to the same. The appeal filed by the temple also came to be dismissed. Thus, the title of the defendant and his father was upheld in the litigation wherein the father of the plaintiffs was a co-defendant along with the defendant as stated above. Subsequently, the SKV High School filed O.S. No. 1289/1974 for declaration of its title over the property, claiming that it had got title over the entire property. The defendant filed O.S. No. 1290/1974 against the SKV High School. The father of the plaintiffs was one of the defendants in O.S. No.1289/1974 filed by the school whereas he was not made party by the defendant in O.S. No.1290/1974. 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. Such judgment of the Trial Court was confirmed in appeal. The defendant denied the validity of the subsequent sale deeds dated 11.9.1940 and 9.2.1950 in his written statement. Even the later partition dated 5.11.1978 was attacked as a fraudulent and collusive transaction. The defendant claimed to be in exclusive possession of the entire property from the date of the court auction, i.e., from 1933 continuously, and that he had acquired right by adverse possession. It was also pleaded by the defendant that the defendant's title has already been declared twice by the Civil Court as mentionedand therefore, the present suit is barred by the principles of res judicata. The claim of joint possession by the plaintiffs was denied by the defendant.
(3.) On a full-fledged trial, the Trial Court decreed the suit and granted the alternative relief of partition. In the first appeal filed by the defendant, the learned Single Judge reversed the judgment of the Trial Court and dismissed the suit. The Letters Patent Appeal filed by the plaintiffs was allowed by the impugned judgment and consequently the suit came to be decreed by the Division Bench of the High Court.;