Y R DHARMALINGAM Vs. MASIAMMAL

JUDGEMENT

(1.) THE above Second Appeal arises against the judgment and decree in A.S.No.5 of 1999 on the file of the District Court, Nilgris at Uthagamandalam modifying the judgment and decree in O.S.No.143 of 1996 on the file of the District Munsif Court, Coonoor.

(2.) THE appellants 2 to 4 are the legal representatives of the decreased first appellant, who was the defendant in the suit. THE respondents are the legal representatives of the deceased plaintiff.

(3.) THE brief case of the defendants are is as follows: According to the defendants, Survey No.251 measures an extent of 3.73 acres. After the sub division of the said survey number into S.No.251/3, the two branches of family became entitled to 52 cents each and not 57 cents. THEre was no partition between the plaintiff and his brother Y.B.Krishnamurthy. THE suit property is in joint ownership of both the plaintiff and his brother Y.B.Krishnamurthy and their sucessors in interest including the defendant. THE defendant has got right, title and interest over the suit property. THE suit, as framed by the plaintiff is not maintainable. THE plaintiff is not in physical possession and enjoyment of his alleged share of 9.5 cents of land in Survey No.251/3 with specific boundaries. THE defendant legally purchased 5 cents of land on 11.09.1992 from late Y.B.Krishnamurthy. Since the date of purchase, the defendant is in possession of the said extent of 5 cents in Survey No.251/3. THEre is no necessity for the defendant to tresspass into his own property. THE plaintiff ought to have filed a suit for partition. THE plaintiff has not come to the Court with clean hands for the grant of equitable relief of injunction. In these circumstances, the defendants prayed for dismissal of the suit.