K KRISHNAN Vs. S MARI NAICKER

JUDGEMENT

(1.) This second appeal is preferred against the judgment and decree, dated 13.11.1989, rendered in A.S.No.15 of 1989 on the file of District Judge, Chengalpattu. The plaintiffs are the appellants in the second appeal.

(2.) The case of the plaintiffs is that they are brothers undivided in status. The schedule mentioned properties have been purchased by their parents Kanniappa Naicker and Alamelu Ammal under three registered sale deeds, dated 4.11.1931, 29.11.1938 and 17.3.1939, from the first defendant's father Vedagiri Naicker for valuable consideration and they took possession of the properties and enjoyed the same. Kanniappa Naicker died in the year 1966 and Alamelu Ammal was managing the suit properties by paying kist through her brother's son, namely, the first defendant herein. Since the plaintiffs and their mother Alamelu Ammal were residing at Madras, the first defendant was requested to take care of the schedule mentioned properties and he was cultivating the lands on behalf of the plaintiffs and their parents. The second defendant is the sister of the plaintiffs. Alamelu Ammal executed a Registered Will, dated 12.4.1977, bequeathing the properties in favour of the plaintiffs and she died on 10.11.1981. The Will came into effect and the plaintiffs have become the absolute owners of the properties. The plaintiffs demanded possession of the lands in the month of Thai, 1981 and issued notice, dated 31.1.1981, to the first defendant to hand over possession. There was no reply. The first defendant has been evading to deliver possession. The plaintiffs sent another lawyer's notice, dated 29.12.1981 and the first defendant sent a reply on 18.1.1982 setting up a hostile title. Hence the plaintiffs have filed the suit for declaration of their title to the schedule mentioned suit properties and for a direction to the first defendant to deliver possession of the suit properties and for future profits.

(3.) The first defendant in his written statement and additional written statement has contended thus. The suit properties are not ancestral joint family properties as alleged by the plaintiffs and they have not been described correctly. The plaintiffs' mother Alamelu Ammal is the elder sister of the first defendant's father Shanmugha Naicker. The allegation that the suit properties were purchased by Kanniappa Naicker and Alamelu Ammal from the first defendant's father under three registered sale deeds is false. Kanniappa Naicker and Alamelu Ammal were permanent residents of Old Washermanpet at Madras and they did not purchase properties in the suit village. In any event, the three sale deeds alleged by the plaintiffs never came into force and acted upon. The plaintiffs in their notice, dated 31.1.1981, had claimed that the house property contained in 'A' schedule is in permissive possession of the first defendant and the lands mentioned in the notice have been leased to the first defendant by their mother Alamelu Ammal on 'waram' basis and the first defendant was giving 'waram' to their mother. But in the plaint the plaintiffs have alleged that Alamelu Ammal was herself managing the properties by paying kist through the first defendant and the first defendant was a care-taker. The plaintiffs have no definite case and the alleged Will by Alamelu Ammal is denied. The suit properties are ancestral joint family properties of the first defendant and his father Shanmugha Naicker. The elder brother of the first defendant died four years back and the mother of the first defendant is alive. The first defendant is residing in the suit house with his family, along with mother. The allegation that the first defendant is in permissive possession in respect of the suit house is false. Neither Kanniappa Naicker nor Alamelu Ammal ever attempted to sub-divide the lands in pursuance of the alleged sale deeds and obtain separate patta in their names. Though the sale alleged by the plaintiffs is more than forty five years ago, the patta to the suit properties were not transferred in the name of Kanniappa Naicker or Alamelu Ammal. Patta to the suit lands stood in the name of father of the first defendant and afterwards it stands in the name of the first defendant. Kist is paid by them only. The first defendant is in possession and enjoyment of the suit properties in his own right and cultivating the same by paying kist. The house stands registered in the name of the first defendant only and the house tax is being paid by him. The father of the first defendant and the first defendant have been in possession and enjoyment of the suit properties in their own right and they have acquired title to the suit properties by adverse possession and prescription also. The first defendant's mother has installed a pump-set to the Well and service connection stands in her name. The first defendant has prescribed title by adverse possession and the suit is also barred by limitation.