KANDASAMY GOUNDER Vs. APPAVAOO

JUDGEMENT

(1.) THIS revision is directed against the fair and decretal order dated 20. 3. 2003 made in I. A. No. 426/2001 in O. S. No. 293/1995, by the District Munsif Court, Tiruchengode dismissing the petition filed under Or. 8 R. 9 CPC, refusing to receive the Reply Statement. Petitioner is the Revision Petitioner.

(2.) THE Plaintiff has filed the suit O. S. No. 293/1995 for partition. As per the averments in the plaint, case of the Plaintiff is that the suit property belongs to the Plaintiff and the two Defendants, who are the sons of Nanjappa Gounder. Further case of the Plaintiff is that the suit properties were being jointly enjoyed by the Plaintiff and Nanjappa Gounder. After the demise of Nanjappa Gounder, the Plaintiff has been finding it difficult to enjoy the suit property jointly with the Defendants. In the month of Aani, 1995, with the help of the Village Administrative Officer, the Plaintiff was able to divide the properties by metes and bounds by planting stones. By removing the stones, the Defendants have started constructing house in a portion of the suit property which is contiguous to the Panchayat Road connecting Kilapalayam on one side and Rasipuram Main Road on the other side. On 7. 8. 1995, the Plaintiff objected to the construction, on the ground that no structure, of a permanent nature, should be put up in an undivided property. There are two wells in the suit property. The Plaintiff has 1/4th share while the remaining 3/4th share belongs to the Defendant. The suit items 1 to 5 are to be divided into two equal shares and items 6 and 7 into four equal shares and one such share is to be allotted to the Plaintiff. Hence the Plaintiff has filed the suit for partition and separate possession and also for Permanent Injunction restraining the Defendants from in any way raising or continuing to raise any permanent structure.

(3.) THE Defendants have filed the Written Statement contending that the Plaintiff is a purchaser only to a definite extent from one Pavayee under a registered Sale Deed dated 29. 11. 1975. The Plaintiff is entitled only to the portion as enjoyed by his vendor Pavayee. If the Plaintiff is aggrieved by endorsing him in the patta, the Plaintiff must institute a suit for declaration of his right. The Plaintiff is a stranger to the suit property and the Defendant's family. There is no joint enjoyment of the property by the Plaintiff and Nanjappa Gounder at any point of time. The Defendant's husband Nanjappa Gounder purchased the lands from Karuppa Gounder and others by a Sale Deed dated 15. 3. 1973. Kailasa Gounder, father of Nanjappa Gounder had purchased 1/2 of the property under a Registered Sale Deed on 20. 3. 1937. From the date of purchase, Kailasa Gounder and his son Nanjappa Gounder and the Defendants have been in open and continuous possession of the properties. The Defendants have perfected their title by adverse possession, by enjoying the same for more than the statutory period. Even if the Plaintiff has got any right, the same has been lost by non exercising any right in the suit property. Nanjappa Gounder made improvements in the property by removing the rocks and levelling the lands and also deepening the well in Suit S. No. 102/5. Prior to the installation of electric motor pump set and obtaining electricity Service Connection, the Defendants and their father Nanjappa Gounder have also installed a oil engine in the well in S. No. 102/5 and well in S. No. 102/6 and the Plaintiff is not entitled to the relief of partition and Permanent Injunction.