R JAMES ARULAPPA Vs. C ARUL THIAGARAJA

JUDGEMENT

(1.) The defendants in a suit for partition, whose defence though accepted by the trial Court, was rejected by the first appellate Court, which granted a decree in favour of the plaintiffs, have brought forth this second appeal.

(2.) The following facts are noticed in the pleadings of the parties: The plaintiffs were the sons of Chellappa, who died on 3.11.1981. The defendants were the sons of Rajappa, the brother of Chellappa. One Arulappa, the grandfather of the plaintiffs, entered into the suit property and converted the said Odai Poramboke into a coconut garden. He obtained a mortgage in respect of the suit properties and adjacent properties. The suit properties were in the possession and enjoyment of Arulappan. The Government granted Kuthagapattom in his name for the suit properties. Arulappa was enjoying the suit property till his death in 1958. During his life time, he executed two Wills in favour of the plaintiffs' father and the defendants' father. After his death, the properties were in the possession and enjoyment of Chellappa, the plaintiffs' father, and his brother Rajappa. They had planted coconut trees and other trees in the suit properties, and they were in joint possession of the same till 1973. The plaintiffs were entitled to + right in the suit properties. Under the Will, Arulappa authorised his younger son Rajappa to conduct the case in O.S.No.86/58 . Accordingly, the case was conducted and it was decreed. Rajappa and his children do not get any special right under the Will. The defendants had no right to set up possession over the entire suit properties. The defendants were forcibly enjoying the entire properties without any manner of right. Hence, the suit.

(3.) The suit was vehemently contested by the defendants by stating that Arulappa had neither spent any money on the suit properties nor planted any coconut trees thereon; that during the life time of Arulappa, the defendants' father Rajappa was in exclusive possession of the properties; that neither during the life time of Arulappa nor after his death, the plaintiffs were not in possession of the suit properties; that Chellappa did not plant any coconut trees; that no improvements were made by the plaintiffs' grandfather; that the decree in O.S. No.86/58 was confirmed by the first appellate Court; that Rajappa applied to the Government for grant of patta, and it was, accordingly, granted in his favour; that assuming that the plaintiffs' father Chellappa had any right in the property, such right has been lost by reason of the open and hostile adverse possession of Rajappa from the date of death of Arulappa; that all the trees were planted by Rajappa; that he has also constructed a small shed; that the plaintiffs' father had not contributed a single pie for the improvement of the properties; that the suit is barred by limitation and also hit by Order 2 Rule 2 C.P.C.; that the plaintiffs were not entitled to any reliefs, and hence, the suit was to be dismissed.