ANNADURAI Vs. MAYAZAGHU

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 29.11.1996 made in A.S.No.22 of 1996 by the Court of Subordinate Judge, Devakottai thereby confirming the judgment and decree dated 29.2.1996 made in O.S.No.92 of 1995 by the Court of District Munsif, Devakottai.

(2.) IN fact, the respondent herein has filed the suit in O.S.No.92 of 1995 on the file of the Court of District Munsif, Devakottai pleading that the suit properties are situate at Eluvankottai in Devakottai Taluk; that the plaintiff went to Singapore in 1937 and used to earn his money and come back home; that he purchased the suit properties from out of his self-earning and through registered sale deeds, Item No.1 by the deed dated 12.9.1949 and Items No.2 and 3 under the deed dated 29.6.1959; that during his absence in INdia, his co-brother one Alagesh looked after the lands cultivating the same on his behalf; that the plaintiff thus has been in possession and enjoyment of the suit properties from the date of purchase till the date of suit; that the sale deed pattas and kist receipts were in the custody of the plaintiff's brother Kalimuthu who was the husband of the 4th defendant and father of defendants 1 and 3 and father-in-law of second defendant, who is the wife of the first defendant; that the said Kalimuthu died in January, 1994; that the plaintiff ultimately came to INdia on 24.9.1994 and demanded the original sale deeds, pattas and kist receipts from the defendants but they refused to give the same; that on the contrary, they challenged his life; that the pattas stood in his name in patta No.388; that through the said Alagesh, who cultivated the lands in the last fasli, the defendants openly challenged not only the plaintiff's possession of the suit properties but also his life and since the plaintiff had to leave INdia urgently, he appointed one Kaliammal, daughter- in-law of Karuppiah, another brother of the plaintiff, as his power of Attorney Agent leaving instructions to file the suit against the defendants further entrusting possession of the suit properties; that the defendants denied title of the plaintiff to the suit properties and threatened the physical possession of the same and hence the suit for declaration of the title of the plaintiff to the suit properties and for permanent injunction restraining the defendants from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and for costs.

(3.) AGGRIEVED the defendants preferred an appeal before the Court of Subordinate Judge, Devakottai and the said first appellate Court also having framed four points viz. 1. Whether the suit properties have been purchased from out of the income of the joint family consisting of the plaintiff and his brothers. 2. Whether there had been a partition between the plaintiff and his brothers. 3. Whether the suit schedule properties are belonging to the plaintiff. and 4. Whether the judgment and decree as passed by the lower Court is sustainable in law. and focussing its attention regarding the attestation of the plaintiff in Ex.B-2, dated 13.3.1980 would remark that on the part of the defendants, it was not at all proved that the plaintiff attested the said instrument knowing the contents of the document, which is the burden cast on the defendants; that even D.W.1 in his evidence has stated that he did not go to the Sub Registrar's Office at the time of execution of Ex.B-2 and hence it cannot be said that knowing the contents of Exs.B-1 and B-2, the plaintiff had attested them and hence this snag is cast off; that there is absolutely no hindrance to decree the suit as prayed for since all the other pleadings putforth on the part of the defendants stood without being substantiated in evidence and would dismiss the appeal with costs thus confirming the judgment and decree of the trial Court.