SANKAN Vs. MUNIAN

JUDGEMENT

(1.) THE second defendant in O.S.No.63 of 1987 on the file of the Subordinate Judge, Pudukottai, is the appellant in the Second Appeal. THE respondent herein filed the said suit for an injunction restraining the defendants in the suit who were respectively father and son from putting up any construction in the suit property belonging to him.

(2.) THE case as set out in the plaint is as follows: THE suit property belongs to the plaintiff. After the death of his father, he became entitled to it and he is in enjoyment paying kist, etc. His father and the first defendant were brothers. THEre was a partition between the plaintiff's father and the first defendant about 45 years prior to the suit and in that partition the suit property was allotted to the plaintiff's father. THEre are three houses in the suit property one of which is occupied by the plaintiff, the other two houses have been let out to the first defendant on a monthly basis. THE defendants have not been paying the rent. THE plaintiff would be taking separate proceedings for their eviction. As the defendants are attempting to put up construction, the suit is being filed for an injunction.

(3.) THE definite case of the plaintiff is that in a partition between his father and the first defendant about 45 years prior to the suit, the suit property fell to his father's share. That there was a partition is admitted by both sides. As regards the allotment, the case of the plaintiff is that his father was allotted the southern survey number, while the first defendant was allotted the northern survey number. According to the second defendant-appellant, the two survey numbers were treated as a single unit and the 34 cents adjacent to the road on the west was allotted to the first defendant, 74 cents in the middle were allotted to the plaintiff's father and the balance 40 cents on the eastern side were allotted to the first defendant and in respect of the eastern property, northern 1.45 acres were allotted to the first defendant and the southern 1.45 acres to the plaintiff's father. So far as the defendants are concerned, absolutely no material is produced to substantiate their contention that the properties were divided in the manner alleged by them. However, in support of the plaintiff's case, the plaintiff as P.W.1 has spoken to the division and as to how in the resurvey for the entire extent of S.No.394/4 his father was given patta and the first defendant was given patta for S.No.398/3. It was not at all challenged in cross-examination. In fact, it is admitted on the side of the defendants that for the entire S.No.398/4 patta stands in the name of the plaintiff's father and for S.No.398/3 in the name of the first defendant. If as alleged by the defendants, the allotment was in any way different from what the pattas show, the onus was entirely on the defendants to substantiate the same. This onus has not been discharged on the side of the defendants. Originally the patta for S.No.398/4 was in the name of the plaintiff's father. After his death, it was changed to Patta No.676 in the name of the plaintiff. This is substantiated by Ex.A-2 extract from Land Records Register. Even till 1978 there was no change in the manner alleged by the defendants. For the entire S.No.398/4 for 2.31 acres Patta stands in the name of the plaintiff in Patta No.676. From the Patta Book it is seen that he had got that property by inheritance. Exs.A-5 and A-6 are the kist receipts relating to this patta produced by the plaintiff. That even in Fasli 1391 the plaintiff was in possession of the suit property is seen from Ex.A-3 adangal extract. THE suit was filed in the year 1983. None of the documents produced on the side of the defendants is prior to the suit. Ex.B-9 is dated 10.10.1985 which is subsequent to the suit and which, no doubt, shows that for S.Nos.398/4-A, 398/4-B and 398/4-D the second defendant has been issued patta. That will not in any way advance the case of the defendants for obvious reasons. Thus the case as put forward by the plaintiff is fully substantiated. THE courts below have rightly found that the partition between the plaintiff's father and the first defendant was in the manner averred by the plaintiff.