A MUNUSAMY Vs. A GOVINDARAJ

JUDGEMENT

(1.) THE plaintiff in O.S.No.92 of 1998 on the file of the District Munsif-cum-Judicial Magistrate Court, Omalur, is the appellant.

(2.) THE appellant/ plaintiff filed the suit for declaration that the suit Well belongs to him and for injunction restraining the 1st defendant from interfering with his right and enjoyment of the Well. THE case of the plaintiff/ appellant was that the property in S.No.357/3 having an extent of 2.95 acres belonged to the family of the appellant and 1st respondent who are brothers and it is their ancestral property and they orally divided the property in the year 1980 and under the oral partition the appellant and the 1st respondent took one acre each and giving one acre to their mother Perumayammal. It was further stated that in the oral partition the Well in Survey No.357/3B was allotted to the share of the appellant/ plaintiff and he is enjoying the property. As the 1st respondent attempted to claim right over the Well, the suit was filed for declaration and injunction.

(3.) MR.R.Subramanian, the learned counsel for the appellant submitted that the lower appellate Court erred in holding that the 1st respondent has proved his right over the Well through Exs.B6 and B7 and the appellant specifically denied the execution of Exs.B6 and B7 and therefore it is for the 1st respondent to prove the same and though the documents were sent to Expert, the Expert opined that the opinion cannot be given by the reason of smudging of thumb impression of Exs.B6 and B7 and without proving Exs.B6 and B7 by examining the attesting witnesses, the 1st respondent cannot rely upon Exs.B6 and B7 and that was rightly appreciated by the trial Court and having regard to the fact that the suit Well is mentioned in the name of the appellant in the revenue records as evidenced by Exs.A1 and A2 the trial Court rightly held that the appellant has proved the exclusive right and the lower appellate Court without properly appreciating Exs.A1 and A2 erroneously relied upon Exs.B6 and B7 and dismissed the suit.