T M MANICKA NAICKER Vs. N J CHANDRASEKAR

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 12.7.1991 rendered in A.S.No.89 of 1990 by the Court of District Judge, Chengai Anna District at Chengalpattu, thereby confirming the judgment and decree dated 30.7.1990 rendered in O.S.No.199 of 1984 by the Court of District Munsif, Chengalpattu.

(2.) Tracing the history of the above second appeal coming to be preferred what comes to be known is that the appellant herein has filed a suit against the respondents in O.S.No.199 of 1984 on the file of the Court of District Munsif, Chengalpattu praying for a declaration, declaring the plaintiff's title over the suit properties, for a permanent injunction restraining the defendants from in any manner alienating the suit properties or from interfering with the plaintiff's possession over the suit properties and for costs on averments such as the plaintiff is the absolute owner of the suit properties measuring to an extent of 0.86 cents situated at No.260 Edaiyur Village; that the plaintiff purchased two items of suit properties from one Jambulinga Naicker for a valid consideration of Rs.2,000/- in February 1955 and it was agreed that the document would be written and registered within six months from February 1955; that the said Jambulinga Naicker is a very rich man and the plaintiff could not approach him very easily; that the matter was postponed and thereafter Jambulinga Naicker fell ill and he died within few years; that the first defendant and his deceased brother N.J.Thirunavukkarasu who are the sons of Jambulinga Naicker were promising to execute the document; that after the death of their father they have also postponed the execution of the sale deed, stating that the plaintiff is in undisturbed possession of the land, paying kist of the land and there will not be any difficulty or threat of dispossession at the hands of the first defendant and his deceased brother N.J.Thirunavukkarasu; that the plaintiff believed the words of the 1st defendant and his brother paying kist to the suit properties; that the plaintiff is in possession of the suit properties as its owner and cultivating the same personally from the year 1955 onwards and thus he has prescribed title by adverse possession; that there is no sale deed executed and registered in his favour though the entire sale consideration has been paid in pursuance of the oral agreement; that in any event the plaintiff's possession has to be protected; that the defendants demanded with the plaintiff to pay the market value for the suit properties, so that they could execute a sale deed, for which the plaintiff was not amenable to pay the difference in price as on this date, hence the 1st defendant is trying to sell the properties to the third parties; that under these circumstances there is likelihood of disturbance of possession. On such averments the plaintiff has filed the suit praying for the reliefs extracted supra.

(3.) In the written statement filed by the defendants, they besides generally denying the allegations of the plaintiff, would further specifically allege that the suit is not maintainable in law as well as on facts; that the three items of the suit properties at Edaiyur Village were allotted to the share of Jambulinga Naicker, the father of the first defendant under a registered partition deed dated 3.6.1935 and that the deceased Jambulinga Naicker became the absolute owner of the three items of the suit properties; that he had been in possession and enjoyment of the suit properties continuously and uninterruptedly until his life time; that he was paying kist by himself or through caretakers, his brother-in-law, Rudhrakotti; that his brother-in-law Rudhrakotti was managing and supervising the cultivation on behalf of the deceased Jambulinga Naicker; that Jambulinga Naicker died on 7.12.1964 leaving behind his son the first defendant, his deceased son Thirunavukarasu, his daughters and daughter of predeceased daughter, the second defendant herein is the wife of Thirunavukarasu; that they inherited the suit properties and other properties as the legal heirs of the deceased Jambulinga Naicker and they were in joint possession and enjoyment of the same until the date of partition; that their maternal uncle, Rudhrakotti managed and supervised the cultivation on behalf of them; that they paid kist for the suit properties; that they divided the suit properties and other properties by metes and bounds under a registered partition deed dated 17.8.1971; that the first item of the suit properties was allotted to the share of the first defendant; that the second and third items of the suit properties were allotted to the share of the husband of the second defendant; that the defendants were in exclusive possession and enjoyment of their respective shares in the suit properties continuously and uninterruptedly; that after the death of Rudhrakottii his son Umakanthan was managing and supervising the cultivation of the first item of the suit properties and his another son Ganesan was managing and supervising the cultivation of the 2nd and 3rd items of the suit properties; that the husband of the second defendant died on 2.9.1976 leaving behind the second defendant, her son and daughter and they inherited the second and third items of the suit properties.