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2008 DIGILAW 3499 (MAD)

R. Subramani v. Narayani Ammal & Another

2008-09-22

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- Common Judgment: 1. A.S.No.50 of 2006 has been directed against the Judgment and decree made in A.S.No.183 of 2003 on the file of VI Additional Judge, City Civil Court, Chennai which had arisen out of a decree and Judgment made in O.S.No.2326 of 1996 on the file of XVI Assistant Judge, City Civil Court, Chennai. A.S.No.98 of 2006 has been directed against the Judgment and decree made in A.S.No.184 of 2003 on the file of VI Additional Judge, City Civil Court, Chennai which had arisen out of a decree and Judgment made in O.S.No.4127 of 1997 on the file of XVI Assistant Judge, City Civil Court, Chennai. 2. O.S.No.2326 of 1996 was filed by one Narayani Ammal, the mother of the defendant R. Subramani, who is the plaintiff in O.S.No.4127 of 1997 for bare injunction. 3. The short facts of the averments in the plaint in O.S.No.2326 of 1996 relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaintiff is in possession and occupation of Plot No.252 of G.K.M.Colony which is the plaint schedule property from 1971. The Tamil Nadu Slum Clearance Board under the World Bank Scheme of lease-cum-sale agreement allotted the said plot of land in favour of the plaintiff Narayani Ammal as per its proceeding dated 3. 1983 and entered into a lease cum sale agreement with the plaintiff on the same date under which the Board agreed to sell the plot of 194 sq.mtrs to the plaintiff on payment of sale consideration of Rs.1552/- agreed to be paid in a monthly instalment of Rs.8/-. The plaintiff was working as a Corporation teacher since 1959 and retired on 30.6.1991 and worked for a further period of one year after superannuation. Her husband died on 28. 1973. The plaintiff Narayani Ammal had paid the entire dues to the Tamil Nadu Slum Clearance Board out of her own earnings and savings, the last such payment was made on 110. 1990 and receipts have been issued for the same. Even before the date of sale agreement, there was a hut in the plaint schedule property which was subsequently been removed and a pucca house was put up by the plaintiff in the plaint schedule property in the year 1971 and she is residing therein. 1990 and receipts have been issued for the same. Even before the date of sale agreement, there was a hut in the plaint schedule property which was subsequently been removed and a pucca house was put up by the plaintiff in the plaint schedule property in the year 1971 and she is residing therein. The plaintiff had set up a cycle spare parts shop known as "Vinayaka Cycle Spares" at cost of Rs.40,000/-for her son, the defendant herein and had conducted his marriage on 110. 1991. Both the defendant and his wife were trying to force the plaintiff to transfer the property to the defendant. Having failed in their attempt, the defendant had beaten up the plaintiff on 37. 1992, which necessitated the plaintiff to lodge a police complaint on 8. 1992. Before the police, the defendant had agreed to repay the said sum of Rs.40,000/- in monthly instalments of Rs.500/-which was followed by a confirmation letter dated 18. 1992. The defendant thereafter paid a sum of Rs.500/- for three months and thereafter failed to pay the same. The defendant locked up and left the rear portion of the plaint schedule property in October 1992. But in December 1992, the defendant attacked the plaintiff on the ground that the plaintiff did not let out the portion to a person sent by him and the plaintiffs daughter lodged a complaint dated 12. 1992 in the local police station. Again before the police, the defendant had apologized for his act and gave a letter of undertaking dated 112. 1992. However, the defendant being the son of the plaintiff, the plaintiff allowed the defendant to occupy the said rear portion of the plaint schedule property. In January 1994, the defendant under the pretext of cleaning and white washing the entire suit premises obtained the keys for the front portion and thereafter started using the front portion also. On 26. 1995, when the plaintiff went to the suit premises to pick up some of her house hold articles in the suit premises, the defendants wife started using abusive language and used their dogs to threaten the plaintiff. Thereafter, with the help of her daughter living opposite to the suit premises managed to enter the premises and took the articles. Thereafter, on 26. Thereafter, with the help of her daughter living opposite to the suit premises managed to enter the premises and took the articles. Thereafter, on 26. 1995, the defendant along with his in laws came to the plaintiffs residence and attacked the plaintiff and went and lodged a complaint with the local police station as if the plaintiff had attacked the defendant and his family. On 26. 1996, the defendant and his in laws attacked the daughter of the plaintiff who is living opposite the suit premises who had helped her mother to go inside the suit premises on 26. 1995 and there after lodged a complaint in the local police station against the daughter of the plaintiff. On enquiry, the police have dropped the complaint. In July 1995, the defendant vacated the said rear portion and only handed over the keys to the front portion of the suit premises and refused to hand over the keys of the rear portion. The defendant had also taken away the various furnitures and articles kept in the front portion of the suit premises along with the ration card. In November 1995, the defendant tried to let out the said rear portion on several occasions but the plaintiff managed to prevent the same on talking to such persons. However, on 20.1.1996, the defendant managed to let out the said rear portion to two bachelors. On 21. 1996, the plaintiff came to know about the same through her daughters family and when she protested to such illegal letting out by the defendant, the defendant started using abusive language against the plaintiff and her daughter. Hence the plaintiff lodged another complaint with the police on 21. 1996. At the instance of the police, the said tenants vacated the rear portion of the suit premises on 31. 1996. The defendant failed to hand over the keys of the rear portion to the plaintiff. Hence the suit for bare injunction. 4. The defendant in his written statement would contend that the plaintiff has no cause of action to file the suit and that the suit property bearing plot No.252, door No.3, 2nd lane, 40th Street, Akbar Square, G.K.M.Colony, Madras -82 does not belong to the plaintiff but belongs to the defendants father K. Ramalingam. The defendants father was in Military service as Havildar in Royal Indian Engineering Service in Army. The defendants father was in Military service as Havildar in Royal Indian Engineering Service in Army. Since he was an ex-service man, Ex Service Association ,GKM Colony allotted the plot now in dispute to him in the year 1971 while he was alive. The father of the defendant died on 28. 1973 while he was in service as Chief Welder. During the relevant period, the defendant was a minor and the plaintiff and his mother received the compensation, gratuity and other amount from the Voltas Company. With that funds the house was constructed in Plot No.252. At the allotment of the suit plot No.252 in favour of the plaintiff by the Tamil Nadu Slum Clearance Board, the defendant was a minor and was not aware of the proceedings mentioned by the plaintiff in the plaint. After the allotment of Plot No.252 in the year 1971, the defendant along with the plaintiff was residing there and the sale consideration of the plaint was not paid by the plaintiff alone. The plaintiff has not contributed any amount towards the construction of the building in the suit plot. The plaintiff was not set up a cycle spare parts known as Vinayaka Cycle Spares" at the expense of Rs.40,000/- for the benefit of the defendant. The plaintiff was paid only Rs.10,000/- to the defendant and the said amount has been repaid to her by way of cheque. The allegation that the defendant after the marriage had forced the plaintiff to transfer the property in favour of the defendant is false. The marriage was arranged by the plaintiff and the defendant got married D. Kanchana on 110. 1991. But subsequent to the marriage, the plaintiff started ill treating her own daughter-in-law in various ways and methods and the defendant intervened and tried to pacify the plaintiff and his wife but the plaintiff instead of co-operating with the defendant making false and frivolous complaints to the police. The defendant never borrowed a sum of Rs.40,000/- from the plaintiff. The plaintiff is none other than the mother of the defendant and the defendant is the only son of the plaintiff. The plaintiff was always ill-treating both the defendant and his wife. As the member of the Hindu Undivided Family, the defendant had every right to live and reside and enjoy in the suit schedule property. The plaintiff is none other than the mother of the defendant and the defendant is the only son of the plaintiff. The plaintiff was always ill-treating both the defendant and his wife. As the member of the Hindu Undivided Family, the defendant had every right to live and reside and enjoy in the suit schedule property. This defendant had equal right to claim share in the property, which he reserves to take separate legal action by filing a partition suit. The defendant actually residing in the house but he thrown out from the house and the plaintiff had thrown out the articles on preventing this defendant from entering into the premises and also threatened that she will use force to prevent him from entering into the house. This defendant has not used any abusive language at any point of time against the plaintiff. Due to ill treatment received at the hands of the plaintiff, the defendant and his wife left the suit premises and now they are residing in some other place for safety. The defendant has not taken away any articles from the suit premises except ration card to receive the provisions from the ration shop since his name finds a place in the ration card. This defendant has not let out the rear portion of the plaint schedule property to the third person. The balance of convenience is not in favour of the plaintiff to grant injunction. Hence the suit is liable to be dismissed. 5. The plaintiff in O.S.No.4127 of 1997 is the son of the first defendant K. Narayani Ammal who is the plaintiff in O.S.No.2326 of 1996. O.S.No.4127 of 1997 was filed by the plaintiff for partition of his 1/3rd share in the plaint schedule property and for mesne profits and for costs. 6. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The first defendant is the mother of the plaintiff and the second defendant is the eldest sister of the plaintiff. The plaintiffs father late K. Ramalingam/the husband of the first defendant joined in Army Service and served in Royal Indian Engineering service as Havildar and his army number was 98486. The plaintiffs father left the service of Army and he joined in Voltas Limited, Chennai and he was designated as Chief Welder and he died on 26. 1973. The plaintiffs father late K. Ramalingam/the husband of the first defendant joined in Army Service and served in Royal Indian Engineering service as Havildar and his army number was 98486. The plaintiffs father left the service of Army and he joined in Voltas Limited, Chennai and he was designated as Chief Welder and he died on 26. 1973. After his retirement, late Ramalingam was recognized by an Ex Servicemen Association as its member. The said Ex servicemen Association acquired a property in Madras which area is being called as General Kumaramangalam Colony. The said K. Ramalingam was allotted a plot No.1529(old) and new Plot No.252 in 2nd Street, Akbar Square, General Kumaramangalam Colony, Madras-99. This allotment was made in the year 1971, when he was alive and he put up a construction out of his own funds. At that time, the plaintiff was only nine years and the second defendant was sixteen years old both of them were minors. After the death of K. Ramalingam, the first defendant approached the employer Voltas Litd and claimed the death-cum-retirement benefits ie., gratuity, and other benefits and the company advised her to move the Court to get a succession certificate, The first defendant, thereafter, filed a petition in the High Court for issue of succession certificate to receive the benefits and the first defendant during the relevant period represented the plaintiff and the second defendant as guardian. The Court granted the succession certificate and the first defendant collected the amount dues and payable from the plaintiffs fathers employees. Thereafter, the first defendant with the amount received from the company put up further construction and the plaintiff and the defendants were in enjoyment of the same. While this was so, the second defendant got married and subsequently, the first defendant arranged the marriage for the plaintiff and the marriage of the plaintiff took place on 110. 1991. Even before the marriage, the plaintiff was working in various companies and was earning and all his earning were given to the first defendant. Subsequent to the marriage of the plaintiff, the first defendant and the plaintiff and his wife were all residing in the plaint schedule property. After the marriage of the plaintiff, he started a business under the name and style of Vinayaga cycle spares at No.1373, Jambulingam Main Road, G.K.M.Colony, Madras-82 and was running the business for few years. Subsequent to the marriage of the plaintiff, the first defendant and the plaintiff and his wife were all residing in the plaint schedule property. After the marriage of the plaintiff, he started a business under the name and style of Vinayaga cycle spares at No.1373, Jambulingam Main Road, G.K.M.Colony, Madras-82 and was running the business for few years. During that period, the income from the business were all given to the first defendant. After his marriage, the first defendant and the plaintiffs wife were not in cordial terms. But both the plaintiff and his wife and the first defendant were residing in the plaint schedule premises. Due to the enmity developed against her daughter-in-law, the first defendant had preferred several police complaints against the plaintiff as well as against his wife. While, the plaintiff was away the first defendant attacked the plaintiffs wife and before the police, the first defendant preferred a complaint on 2. 1992 and also prevented the plaintiff from entering into the house. The first defendant has also filed a suit in O.S.No.2326 of 1996 before the learned XI Assistant Judge, City Civil Court, Madras for bare injunction restraining the plaintiff from entering or disturbing with the peaceful possession of the suit premises and got an order of exparte injunction and hence the plaintiff could not enter into the plaint schedule premises. During 1983, when the plaintiff was a minor, the first defendant approached the Slum Clearance Board and got certain documents in respect of the schedule mentioned property and also procured an allotment letter on 1. 1993 as if the land was purchased under lease-cum-sale agreement by the first defendant. Actually, the fact remains that the said plot was allotted by the Ex Servicemen Association during 1971 and thereafter the plaintiffs father put up construction and only on the basis, the Slum Clearance Board issued lease-cum-sale agreement. The plaint schedule property belongs to the deceased Ramalingam. The document of Slum Clearance Board has no application to decide the title. The plaintiff being the son of the deceased Ramalingam and the first defendant as the mother of the plaintiff and the second defendant as the sister, all the legal heirs of Ramalingam got 1/3rd share each in the plaint schedule property. Under guise of exparte injunction, the plaintiff had thrown out the plaint schedule property. The plaintiff being the son of the deceased Ramalingam and the first defendant as the mother of the plaintiff and the second defendant as the sister, all the legal heirs of Ramalingam got 1/3rd share each in the plaint schedule property. Under guise of exparte injunction, the plaintiff had thrown out the plaint schedule property. Now the property is worth about Rs.8,00,000/-and the first defendant has let out for rent land also trying to sell the suit schedule property. In that case the rights of the plaintiff will be jeopardized. As the legal heir of late K. Ramalinga, the plaintiff is entitled to get 1/3rd share in the plaint schedule property. The first and second defendants are in joint possession of the plaint schedule property. Hence the suit for partition and also for mesne profits. 7. The second defendant remains exparte. The second defendant has adopted the written statement filed by the first defendant which reads as follows: The first defendant was allotted Plot No.252, 2nd Street, Akbar Square, G.K.M.Colony, Madras and it was allotted to her by the Tamil Nadu Slum Clearance Board through World Bank Scheme of Lease-cum-sale agreement vide its proceedings dated 3. 1983. The first defendant entered lease cum sale agreement with Slum Clearance Board to purchase plot of land 194 sq.meters on payment of sale consideration on the terms and condition specified there in. The first defendant had paid a sum of Rs.1552/-as monthly instalment for five years as sale consideration apart from Rs.200/-as advance for the said allotment. The defendant has also paid development charges in monthly instalments of Rs.8/-for a period of 20 years. The marriage of the plaintiff took place on 110. 1991. The plaintiff is B.Com Graduate, earned only sum of Rs.450/-per month and he has not given any amount to the defendant. The first defendant was working as a sewing teacher in the Corporation school of the Madras Corporation in perambur Barracks Road, where she retired from service but the first defendant with her income looked after plaintiff and his wife even after their marriage. The plaintiff started his business dealing in Cycle spares at No.1373, Jambulingam Main Road, G.K.M.Colony, Madras . The first defendant had extended financial support to an extent of Rs.40,000/-from her gratuity and provident fund. The income from the business were all taken by the plaintiff. The plaintiff started his business dealing in Cycle spares at No.1373, Jambulingam Main Road, G.K.M.Colony, Madras . The first defendant had extended financial support to an extent of Rs.40,000/-from her gratuity and provident fund. The income from the business were all taken by the plaintiff. From the date of the marriage, the plaintiff with the help of his in-laws started giving trouble to the first defendant by placing a demand to sell the suit property. Due to strict resistance by the defendant in not selling the house, the plaintiff got enraged and he went to the extent of beating up the first defendant , which made the first defendant to lodge a police complaint in order to prevent the physical attack of the plaintiff and his wife. On 26. 1996, when she entered her house(the suit property) to pick up some household articles the plaintiff and his wife prevented the first defendant from entering the house. Hence the first defendant filed O.S.No.2326 of 1996 and got an order of injunction in her favour. The plaintiff has filed the suit only as a counterblast to the suit O.S.No.2326 of 1996 filed by the first defendant herein. The first defendant being the absolute owner of the plaint schedule property is entitled to deal with the property according to her will. Hence the suit is liable to be dismissed. 8. On the above pleadings, the trial Court had framed six issues and one additional issue in both the suits for trial. The learned trial Judge has conducted joint trial for both the suits viz., O.S.No.2326 of 1996 and 4127 of 1997 and the evidence was recorded in O.S.No.4127 of 1997. The plaintiff in O.S.No.4127 of 1997 viz., R. Subrmani has examined himself as P.W.1 and one Ganapathy was examined as P.W.2. Exs A1 to A7 were marked on the side of the plaintiff. The plaintiff in O.S.No.2326 of 1996 viz., K. Narayani Ammal was examined as D.W.1 and Exs B1 to B14 were marked. The plaintiff in O.S.No.4127 of 1997 viz., R. Subrmani has examined himself as P.W.1 and one Ganapathy was examined as P.W.2. Exs A1 to A7 were marked on the side of the plaintiff. The plaintiff in O.S.No.2326 of 1996 viz., K. Narayani Ammal was examined as D.W.1 and Exs B1 to B14 were marked. Taking into consideration, both oral and documentary evidence let in before him and also the submissions made by the learned counsel on both sides, the trial Judge has come to a conclusion that the plaintiff in O.S.No.4127 of 1997 is entitled to a preliminary decree for partition of his 1/3rd share and decreed the suit as prayed for in O.S.No.4127 of 1997 relegating the question of mesne profits to a separate proceeding under Order 20 Rule 12 CPC and dismissed O.S.No.2326 of 1996 filed by K. Narayani Ammal/ the mother of the plaintiff. Aggrieved by the findings of the learned trial Judge, the plaintiff in O.S.No.2326 of 1996 viz., K. Narayani Ammal has preferred A.S.No.183 of 2003 and the defendant in O.S.No.4127 of 1997 viz., Narayani Ammal and Mangaiyarkarasi have preferred A.S.No.184 of 2003. The first appellate Judge after giving due consideration to the submissions made by both sides and after going through the Judgment of the learned trial Judge in O.S.No.2326 of 1996 and O.S.No.4217 of 1997 had taken a different view from that of the view taken by the learned trial Judge has allowed the appeal in A.S.No.183 of 2003 thereby setting aside the decree and Judgment passed in O.S.No.2326 of 1996 by the trial Judge and granted a decree in O.S.No.2326 of 1996 as prayed for by the plaintiff therein and has also allowed A.S.No.184 of 2003 thereby setting aside the decree and Judgment in O.S.No.4127 of 1997 and thereby dismissing the suit O.S.No.4127 of 1997 which necessitated the defendant in O.S.No.2326 of 19956 to prefer S.A.No.50 of 2006 and plaintiff in O.S.No.4127 of 1997 to prefer S.A.No.98 of 2006. 9. The substantial questions of law involved in these second appeals are i) Whether the Appellate Court is right in law in holding that as per Ex B12 the respondent/defendant in O.S.No.4127 of 1997 is the absolute owner of the property door No.3,2nd Lane, 40th Street, Akbar Square, Old No.252, G.K.M.Colony, Chennai99? ii) Whether the appellant is entitled to 1/3rd share in the schedule mentioned property by filing a suit for partition? ii) Whether the appellant is entitled to 1/3rd share in the schedule mentioned property by filing a suit for partition? iii) Is the land allotted to the plaintiffs father Ramalingam by the Government of India in proceedings No.515/143/RD/ DLC/SC77 dated 7. 1981 and in pursuance of that the Tamil Nadu Slum Clearance Board in recognition of plaintiffs father in military service? iv) Is the respondent/defendant in O.S.No.4127 of 1997 obtained the sale deed from the Tamil Nadu Slum Clearance Board as mother and natural guardian of the appellant and his sister or of her own rights? v) Is the lower appellate court right in law in holding that the respondent paid the sale consideration of her own and not out of the benefit received from the employer of her husband Ramalingam? vi) Whether the appellate Court is right in law holding that the suit property belongs absolutely to the respondent/first defendant as per Ex B12 when admittedly the recitals in the sale deed Ex B12 show that the suit property belonged to the Government of India, Defence Department which was allotted to the Ex Serviceman Late Ramalingam, the plaintiffs father as per Ex A1? vii) Is the plaintiff entitled for a partition of the suit property which was allotted by the defence Department to his father as Ex-serviceman as per Ex A2, A6 and A7? viii) Whether the appellate Court is right in law in granting an injunction against the appellant who is none else then a co-owner of the suit property? ix) Is the respondent entitled for any injunction against the co-owners of the suit property? 10. Substantial question of Law Nos.1, 3, 4, 6 and 7 Ex A2 is the certificate issued by the Ex Serviceman Association as to the effect that the Plot No-1 529(old) and new plot 252 in Second Street, Akbar Square, General Kumaramangalam Colony, Madras-99 in the year 1971 was allotted in the name of Sri K.Ramalingam who served as a Havildar in the Royal Indian Engineering Service in the Army, who was one of the committee member of the said Association. About 139 .07 acres of defence land belonging to the Government of India, Ministry of Defence, New Delhi comprised in R.S.No.379,380 and 381 of Peruvallur Village, R.S.No.153 of Ayanavaram Village and Sy.No.14 of Konnur Village were transferred to Ex Serviceman Association, General Kumaramangalam Colony, West Madras-82 as seen from Ex A5. About 139 .07 acres of defence land belonging to the Government of India, Ministry of Defence, New Delhi comprised in R.S.No.379,380 and 381 of Peruvallur Village, R.S.No.153 of Ayanavaram Village and Sy.No.14 of Konnur Village were transferred to Ex Serviceman Association, General Kumaramangalam Colony, West Madras-82 as seen from Ex A5. As per Exs A6 and A7, the said lands belonging to General Kumaramangalam Colony was transferred to Tamil Nadu Slum Clearance Board under G.O.Ms.No.911, Housing and Urban Development Department dated 11. 1982. 10a) The plaintiff in O.S.No.2326 of 1996 Narayani Ammal, the mother of the appellant herein in both the second appeals would claim that the plaint schedule property was allotted to her under ExB2 by the Tamil Nadu Slum Clearance Board as the wife of late K.Ramalingam and in pursuance of Ex B2, lease-cum-sale agreement in respect of the plaint schedule plot No.252 property, Ex B12 sale deed was executed in favour of her (Tmt Narayani Ammal, the plaintiff in O.S.No.2326 of 1996) and on the basis of Ex B12, the said Narayani Ammal , the mother of the appellant herein had filed O.S.No.2326 of 1996 for bare injunction on the ground that the defendant in O.S.No.2326/1996/the appellant herein in both the appeals had made an attempt to trespass into the suit property which is under her possession and enjoyment from 1971. Admittedly, the property originally belonged to the Government of India, Ministry of Defence, New Delhi, which was intended to be allotted to the persons who served in the Army through their Association. Ex A2 reveals that Ex Servicemen Association had allotted the plaint schedule plot No.252 in favour of the husband of the plaintiff in O.S.No.2326 of 1996 viz., K. Narayani Ammal who served as Havildar with Army No.98486. Subsequently, the land was entrusted to the Slum Clearance Board by the said Ex Servicemen Association who had entered into a lease-cum-sale agreement with Narayaniammal, the plaintiff in O.S.No.2326 of 1996, the widow of the said K. Ramalingam. The said Ramalingam died on 28. 1973 as seen from Ex A3 death extract. Subsequently, the land was entrusted to the Slum Clearance Board by the said Ex Servicemen Association who had entered into a lease-cum-sale agreement with Narayaniammal, the plaintiff in O.S.No.2326 of 1996, the widow of the said K. Ramalingam. The said Ramalingam died on 28. 1973 as seen from Ex A3 death extract. The mother of the appellant herein/the wife of late Ramalingam had filed O.S.No.2326 of 1996 for bare injunction but the appellant/son of the plaintiff in O.S.No.2326 of 1996 had filed O.S.No.4127 of 1997 for partition of his 1/3rd share in the plaint schedule property claiming that the suit property was allotted to his father K. Ramalingam under Ex A2 by the Ex Servicemen Association but the Slum Clearance Board had wrongly entered into a lease-cum-sale agreement under Ex B2 with Narayani Ammal, the plaintiff in O.S.No.2326 of 1996 who is none other than his mother. 10b) The learned counsel appearing for the appellant would contend that lease-cum-sale agreement under Ex B2 by the Slum Clearance Board is invalid since he, the plaintiff in O.S.No.4127 of 1997 and the second defendant in O.S.No.4127 of 1997 who is his only sister are also entitled to the plaint schedule property as legal representatives of the deceased K. Ramalingam and that Ex B2 lease-cum-sale agreement ought to have been entered into not only with Narayani Ammal, the plaintiff in O.S.No.2326 of 1996 but also with the children of the deceased Ramalingam, the plaintiff in O.S.No.4127 of 1997 and the second defendant in O.S.No.4127 of 1997. But the plaintiff in O.S.No.4127 of 1997, the appellant in S.A.No.98 of 2006 has not challenged either Ex B2 or Ex B12 sale deed, which had been executed by the Slum Clearance Board in pursuance of Ex B2 in favour of Narayani Ammal, the plaintiff in O.S.No.2326 of 1996. Unless an order of allotment by the Slum Clearance Board under Ex B2 and Ex B12 are challenged, the plaintiff cannot claim a share in the plaint schedule property. Unless an order of allotment by the Slum Clearance Board under Ex B2 and Ex B12 are challenged, the plaintiff cannot claim a share in the plaint schedule property. Even though in the plaint in O.S.No.4127 of 1997, the plaintiff therein/appellant herein has pleaded that he has proposed to initiate proceedings as against the lease-cum-sale entered into between the Slum Clearance Board and Narayani Ammal under Ex B2 and sale deed executed by the Slum Clearance Board in favour of Narayani Ammal/the mother of the appellant herein under Ex B12, he has not asked for any relief in the plaint filed by him under O.S.No.4127 of 1997 challenging those two documents. Unless and until Ex B2 and Ex B12 are challenged by the appellant herein, he cannot ask for the relief of partition in respect of the plaint schedule property. The moot point is whether the children are also entitled to the plaint schedule property along with the mother/the plaintiff in O.S.No.2326 of 1996 after the death of K. Ramalingam is decided, it cannot be said the allotment of the plaint schedule property under Ex B2 and Ex B12 sale deed in favour of Narayani Ammal, the plaintiff in O.S.No.2326 of 1996 is valid. Hence I hold on substantial question of law No.1 that unless and until the validity of Exs B2 and B12 are decided, it cannot be said that the first defendant in O.S.No.4127 of 1997/the plaintiff in O.S.No.2326 of 1996 is the absolute owner of the property bearing No.3, 2nd Lane, 40th Street, Akbar Square, Old No.252, G.K.M.Colony, Chennai-99. I hold on substantial question of law No.3 that only the recognition of plaintiffs (in O.S.No.4127 of 1997) father Ramalingam in military service, Government of India, Ministry of Defence, New Delhi in proceedings No.515/143/RD/DLC/ SC77 dated 7. 1981, the suit land was allotted by the Tamil Nadu Slum Clearance Board but without considering who are all the heirs of Ramalingam, the allotment under Ex B2 and under Ex B12 sale deed in favour of the plaintiff in O.S.No.2326 of 1996 cannot convey any exclusive right over the suit property on the plaintiff in O.S.No.2326 of 1996. 1981, the suit land was allotted by the Tamil Nadu Slum Clearance Board but without considering who are all the heirs of Ramalingam, the allotment under Ex B2 and under Ex B12 sale deed in favour of the plaintiff in O.S.No.2326 of 1996 cannot convey any exclusive right over the suit property on the plaintiff in O.S.No.2326 of 1996. I hold on substantial question of law No.4 that under Ex B12, sale deed, the first defendant in O.S.No.4127 of 1997/the plaintiff in O.S.No.2326 of 1996 has not obtained the sale deed from the Tamil Nadu Slum Clearance Board as mother and natural guardian of the appellant and his sister who are the plaintiff and defendant in O.S.No.4127 of 1997. I hold on the substantial Question of law No.6 that since the Slum Clearance Board has failed to consider who are all the legal representatives of late Ramalingam, the sale deed under Ex B12 executed by the Tamil Nadu Slum Clearance Board in favour of the first defendant in O.S.No.4127 of 1997/the plaintiff in O.S.No.2326 of 1996 is not proper and the said point is to be decided by the trial Court. I hold on the substantial question of law No.7 that the plaintiff in O.S.No.4127 of 1997/the appellant herein is entitled for partition only if he challenges Ex B12 sale deed and Ex B2 allotment order and got the decree in his favour on the basis of Ex A2, Ex A6 and Ex A7. The Substantial question of law Nos.1, 3, 4, 6 and 7 are answered accordingly. 11. Substantial question of Law Nos.2, 5, 8 and 9 Unless the validity of Exs B2 and B12 are challenged and decided in favour of the appellant, I hold on substantial question of law No.2 that the appellant is not entitled partition his 1/3rd share in the plaint schedule property. Even though, the plaintiff in O.S.No.2326 of 1996/the first defendant in O.S.4127 of 1997 had paid the sale consideration under Ex B12 in respect of the plaint schedule property, the point to be decided is whether after the death of Ramalingam, the plaintiff in O.S.No.2326 of 1996/the first defendant in O.S.No.4127 of 1997 alone is entitled to purchase the plaint schedule property as the legal heir of Ramalingam execluding the appellant and the second defendant in O.S.No.4127 of 1997 who are admittedly the children of late Ramalingam. Unless the plaintiff in O.S.No.4127 of 1997/the appellant herein challenges the lease-cum-sale agreement under Ex B2 and consequential sale deed under Ex B12 executed by the Tamil Nadu Slum Clearance Board in favour of the plaintiff in O.S.No.2326 of 1996, the plaintiff in O.S.No.4127 of 1997 /the appellant herein cannot claim that the Court is not competent to grant injunction against the co-owner of the suit property since Ex B12 sale deed stands only in the name of the plaintiff in O.S.No.2326of 1996 . The substantial question of law Nos.2, 5, 8 and 9 are answered accordingly. 12. In fine, S.A.No.50 of 1996 is dismissed confirming the decree and Judgment in A.S.No.183 of 2003 on the file of VI Additional Judge, City Civil Court, Chennai and S.A.No.98 of 1996 is allowed and the decree and Judgment in A.S.No.184 of 2003 on the file of VI Additional Judge, City Civil Court, Chennai is set aside and O.S.No.4127 of 1997 is remanded to the trial Court. The plaintiff in O.S.No.4127 of 1997/the appellant herein in S.A.No.98 of 2006 has to file necessary amendment application as to challenge Ex B2 and Ex B12 lease-cum-sale agreement and sale deed respectively effected excluding the other legal heirs of Ramalingam. After amendment, the learned trial Judge shall give opportunities to the defendant to file additional written statement and after giving sufficient opportunities to both parties to let in further evidence has to decide O.S.No.4127 of 1997 within three months from the date of receipt of a copy of this order. No costs. Till disposal of O.S.No.4127 of 1997, the plaintiff in O.S.No.4127 of 1997 shall not disturb the possession of the first defendant therein in respect of the plaint schedule property. No costs.