VEERASAMY Vs. SAPPAI KALAN ALIAS MUNUSAMY DIED

JUDGEMENT

(1.) PLAINTIFF in O.S.No.916 of 1978 on the file of the District Munsif, Gingee is the appellant herein. He has filed the said suit for declaration in respect of "A" schedule property and for recovery of possession. He also sought for the relief of partition and separate possession of his share in the suit "C" and "D" schedule property and for determination of mesne profits in respect of A, C and D schedule lands.

(2.) THE appellant putforth his claim on the ground that the suit property belongs to one Angi alias Appu who had four sons viz., Periyappaiyan and Veerasamy, the plaintiff's father, Sappaikalan alias Munusamy, the defendant, one Periadurai and one Chinnadurai. THEre was a partition among the brothers and in the partition, an extent of 0.69 cents was allotted to Angi alias Appu and his brother Velusamy has got an extent of 0.69 cents. But however, Velan's branch do not exist now since, his son went to Malaya. One of the paternal uncle Periadurai also gone to Malaya. One other paternal uncle by name Chinnadurai died without any issue. Hence the land was divided by Angi alias Appu and his two sons are entitled to 0.22 cents each. THE plaintiff's father got 0.22 cents which is the subject matter of the suit claim. Chinnadurai got 0.22 cents and the defendant got 0.22 cents. After the partition, the plaintiff and his father left for Shimoga. THEy returned in the year of 1972. In the meanwhile, the plaintiff's father purchased another 0.88 cents and he entrusted both the plaint schedule property and 0.88 cent property to the defendant for the purpose of management. On his return the plaintiff's father demanded the property. THE defendant surrendered possession of 0.88 cents. So far as the plaint "A" schedule property is concerned, he disputed the title. Hence the suit. So far as "C" and "D" Schedule are concerned, as the legal heirs of agnates of his paternal uncle, the plaintiff has claimed his share.

(3.) IT is the contention of the learned counsel for the appellant that when once it was found that the properties are joint family property and there was a partition among the co-owners, it is for the respondents to establish that they perfected title by adverse possession which means by way of ouster. In the absence of any such plea and taking into consideration admitted fact of the absence of appellant and his father, the lower appellate Court is not correct in reversing the finding of the trial Court. Hence, the judgment and decree of the lower appellate Court has to be set aside.