NATESAN Vs. GANESAN

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree dated 28. 2. 1994 passed in A. S. No. 12 of 1990 on the file of the Subordinate Judge, Tiruvellur, which was preferred against the Judgment and decree in O. S. No. 76 of 1986, dated 23. 12. 1989 on the file of the District Munsif Court, Tiruvellur.

(2.) THE averments made in the plaint are as follows:

(3.) THE averments made in the written statement filed by the defendant are as follows: a. The defendant denies that no partition was effected between the brothers on 13. 7. 1975. He also denied the execution of the kur chit which was alleged to have written on the same day. It is stated by the defendant that originally the suit properties and other properties were mortgaged to one M. K. Sundarraja Chetty and Chandrammal. Since the mortgage was not redeemed, the said Sundarraja Chetty and Chandra Ammal filed a suit for the recovery of the money. They filed a suit in O. S. No. 487 of 1969 and the suit was decreed and as a result of that the properties referred to in the suit brought for sale by Court auction. One Dhanapal Chetty of Thiruvallur has purchased the suit property on 3. 3. 1979 under Court auction. He was in possession and enjoyment over the said property for some time and thereafter, the defendant purchased the suit property from him on 19. 4. 1972 under a registered sale deed. In pursuance of the sale deed dated 19. 4. 1972, the defendant was in possession and enjoyment of the same. The properties referred in the plaint schedule as well as the other properties are self-acquired properties of the defendant. Therefore, he purchased those properties from out of his own savings and income. Those properties are not the properties of the joint family properties. The plaintiff happens to be the brother of the defendant, the defendant allowed him to occupy and construct a small hut thereon. The plaintiff was in permissive possession by the defendant. Out of mercy, the defendant allowed the plaintiff to construct a house thereon and allowed him to remain there. The defendant disputes the claim of the plaintiff over the suit property. Actuallly, the defendant was enjoyed the second item of the suit property by storing manure and hay. Subsequently, since the plaintiff claims as a sole owner of the suit property and the same was brought to the knowledge of the defendant thereby the defendant resisted the claim of the plaintiff. Actually, the defendant permitted the plaintiff to pay the kist on his behalf. Even though the plaintiff produced certain receipts and kist receipts, they would not create any title over the suit property in favour of the plaintiff. The non-production of the kur chit is fatal to the plaintiff's case. The defendant denied the alleged partition, which was entered by his brothers on 13. 7. 1975. The plaintiff is not entitled to the order of injunction against the true owner, the defendant. The suit filed by the plaintiff is not properly framed. The suit is liable to be dismissed. b. The defendant has also filed an additional written statement, wherein, he denied the execution of the alleged kur chit. The members of the family have not joined in the execution and hence the document cannot be used alleging that there was a partition effected between the brothers. Moreover, the alleged documents were wantonly filed by the plaintiff at a belated stage. Further, the said document was not at all registered and it is not a valid document and the same is not admitted by the defendant.