VENKATARAMANA Vs. N MUNUSWAMY NAIDU

JUDGEMENT

(1.) FOLLOWING are the allegations averred in the amended plaint: 1(a) The grand father of plaintiffs by name Ramasamy Naidu and Mannar Naidu were brothers. The father of the plaintiffs Kanniah Naidu and Ramanjulu Naidu were brothers. The suit property is their ancestral property. It is 5.09 acres of land comprised in Survey No. 18/2 in Muthapudupet Village. The suit property along with the adjoining properties were required by the defence department and temporarily the lands were taken away by the said department. Even at the time of requisition, the Government authorities recognised the plaintiffs' paternal uncle Ramanujulu Naidu and Nathamuni Naidu (son of Mannar Naidu) as owners and pattadhars of the suit property. After 1963, the lands were re-delivered to the family by the defence department. The suit property is the joint family property and as such the plaintiffs branch is entitled to half share in respect of the suit property. The land was kept for some time and as the plaintiffs were away from the suit village, they could not attend the affairs of the said property. Kanniah Naidu, father of plaintiffs 2 to 4 approached 1st defendant in the year 1985 about Ayudha Pooja day to effect a partition of the suit property or to sell away the entire property and to deliver half of the sale proceeds to the plaintiffs. 1(b) It was at that stage Kanniah Naidu came to know that the patta was already granted to the 1st defendant, who began to claim title in himself and refused to allot share belonging to the plaintiffs branch. The plaintiffs' father initiated proceedings before the Tribunal at Chengalpattu Settlement Authority (Sub-Court, Chengalpattu) for cancellation of patta granted in favour of 1 st defendant and since there was a delay in filing the appeal, the same was filed with an application to excuse the delay. Presently, the plaintiffs file a suit for passing of the preliminary decree, allotting them half share in the suit property and also for mesne profits.

(2.) IN the written statement filed by the first defendant, the following contentions have been raised: 2(a) The suit is not maintainable. The first defendant vehemently denies the origin and nature of the suit property as alleged in the plaint. The village was requisitioned by the Defence Department and the owners were paid recurring compensation. The first defendant's father Nathamuni Naidu was alone in possession and enjoyment of the suit property as absolute owner and was receiving recurring compensation from the authorities exclusively and none else was entitled to the suit property. At no point of time, the plaintiffs' father or the plaintiffs were in possession of the suit land nor their ancestors were recognised as owners by the Government authorities. Ramanujulu Naidu did not enjoy the property in S. No. 18/2 viz., the suit property at any point of time as owner or pattadar. This defendant's father Nathamuni Naidu alone was recognised as owner of the suit land, who was in absolute possession and enjoyment of the same and after his death in 1967 the first defendant is in exclusive possession and enjoyment of the suit property exclusively till date by paying kist regularly and also by cultivating the same. 2(b) The suit village is a leasehold village and as per Leasehold (Abolition and Conversion to Ryotwari) Act, 27 of 1963, the Government conducted suo motu enquiry in 1968 after issuing notice to all the persons in possession and enjoyment of their properties, as such the notice was received by this first defendant. Parthasarathy Naidu or Kanniah Naidu, the fathers of the first plaintiff and plaintiffs 2 to 4 respectively, did not make any claim at the time of enquiry for the suit land. 2(c) Ryotwari Patta was granted to the respective owners in the suit village, as per the order dated 10.3.1969, by the settlement officer and accordingly, exclusive patta No. 177 was issued in the name of first defendant and his mother Kamalammal and the first defendant is in exclusive possession and enjoyment of the suit property by raising seasonal crops and paying kist for several years regularly till date and he is the absolute owner of the same. 2(d) Enquiry was conducted by the Settlement Tahsildar for all the properties in the suit village and the first plaintiff's father Late Parthasarathy Naidu got himself examined as P.W.28 and P.W.30, claimed joint patta for S. No. 1/1A and accordingly joint patta was issued in favour of the first defendant and Parthasarathy Naidu. As no claim in any form or capacity was made by Parthasarathy Naidu or from anyone in the enquiry in respect of the land in S. No. 18/2, patta was granted in the name of 1st defendant exclusively. It is submitted that the plaintiffs are not entitled to the suit property and are also estopped from making any claim for the same. It is false to state that the suit property is an ancestral one and is a joint family property. It is incorrect to allege that the plaintiffs father approached 1 st defendant and claimed partition of the suit property in the year 1985 in or about Ayudha Pooja day. The plaintiffs failed to explain the delay of each and every day in filing the suit. There is a delay and laches on the part of the plaintiffs in claiming partition, that too, after several years, knowing very well about the grant of patta in favour of 1st defendant. Hence, There is no cause of action for the suit. 2(e) The allegations that the plaintiffs were away from the suit village is not true. The 3rd and 4th plaintiffs are residing in the suit village and Palavedu Pettai village, which is close to the suit land since their childhood and that the 1 st and 2nd plaintiffs used to visit their village often. There was no demand from their fathers to the 1st defendant at any point of time. The plaintiffs themselves know very well that they have no right, title or interest over the suit property in any manner whatsoever. They have wantonly arrayed the defendants 2 to 6 who do not have any right or title in the suit property. 2(f) Parthasarathy Naidu and Kanniah Naidu filed an unnumbered C.M.A. in S.R. No. 10326 of 1985 before the Tribunal at Chengalpattu against 1 st defendant to set aside the order dated 10.3.1969 granting patta in his favour, that too, after an in ordinate delay of 16 years 9 months 10 days and the same is still pending and they have not taken any steps to speed up the matter therein, which shows that they do not have any interest, right or title in any manner over the suit property. After the death of the above said Kanniah Naidu and Parthasarathy Naidu, the plaintiffs have filed the suit after a delay of 24 years, for partition. defen-2(g) On 14.5.1993 for 10 years, upto Fasli 1402, the plaintiffs paid kist on a single receipt in the account of the 1st defendant's mother Kamalammal with the connivance of V.A.O., who knows fully well that the first defendant is continuously paying kist to the suit property for several years without any interruption. The act of V.A.O. is highly illegal and unwarranted against whom, 1 st defendant reserves his right to take legal action. The suit for partition is filed after lapse of 24 years, that too, when the plaintiffs are out of possession and hence the same is barred by limitation and the right of partition if any, has got extinguished in the light of the patta issued in favour of 1 st defendant as per order dated 10.3.1969. 2(h) There was no demand either from the fathers of the plaintiffs or by themselves at any point of time. The plaintiffs claiming under their ancestors are estopped from making any claim over the suit property. The framing of the suit, mode of valuation for the suit property and the payment of Court fee are incorrect, as the plaintiffs are out of possession of the suit property. The Geneology referred to by the plaintiffs and the releationship alleged by them are denied. The other defendants are in no way related to the suit property and they are unnecessary parties and there is no cause of action or relief against the defendants prayed for by the plaintiffs and the suit is bad for misjoinder of parties. The plaintiffs have not filed any material documents and only on the strength of the disputed and fabricated kist receipts, filed the plaint. Their claim is not bona fide. Hence, the suit may be dismissed with exemplary costs.

(3.) WHEN the case was taken up for admission, both the learned counsel prayed the Court to take up the main appeal for disposal and by consent of both sides, the second appeal itself was heard and this judgment is being rendered.