P SHANMUGHAM Vs. SUBRAMANI

JUDGEMENT

(1.) THE second appeal has been filed by one Shanmugham being the first plaintiff in O. S. No. 940 of 1985 on the file of the District Munsif, Thiruchengode against the judgment and decree of the Sub Court, Sankagiri in A. S. No. 78 of 1992 in and by which the said Sub Court has allowed the appeal and consequently dismissed the suit.

(2.) THE said suit was filed by two plaintiffs viz. , Shanmugham and Maharajan against their own elder brother Subramani for the reliefs of declaration and recovery of possession of the suit property with the specific description (vacant site with thatched house) with the following allegations. The plaintiff and defendants are brothers and sons of Kongayammal and Palani Naicker. The said Kongayammal got the suit property by virtue of a settlement deed dated 17. 8. 1970 executed by her father and she was in enjoyment of the suit property. Subsequently, on 10. 2. 1973, the said Kongayammal sold the suit properties in favour of her two sons viz. , the plaintiffs and thereupon the plaintiffs alone are in possession and enjoyment of the suit property. On the date of the said sale deed, there was a thatched house and after the purchase, the plaintiff removed the thatched house and constructed a terraced house with the measurements of 28x18 feet at the cost of Rs. 6000/= and at the same time, the plaintiffs put up a thatched shed in the adjacent vacant site of the terraced house for the purpose of Kongayammal's residence. The said Kongayammal was residing in the thatched shed till her death. The defendant being eldest son of Kongayammal never looked after the mother and he was residing at a different place. After the death of Kongayammal, the defendant demanded partition for which the plaintiffs refused. Subsequently, the defendant attempted to trespass upon the suit property and it was obstructed and then the plaintiff issued notice through advocate to the defendant for which the defendant also gave reply notice with false allegations as if the thatched shed belongs to the defendant and he alone is residing in the thatched shed and previously the thatched shed was owned by his father Palani Naicker and that inspite of the advise of the panchayatdars, the defendant did not hand over possession of the thatched shed and the surrounding vacant site. Therefore, the plaintiffs happened to file the suit for the relief of declaration in respect of the said thatched shed and surrounding vacant site and consequential recovery of possession.

(3.) THE said suit was resisted by the defendant with the following allegations. It is not correct to state that the said Kongayamal was owning the entire suit property as per the settlement deed dated 17. 8. 1970 in her favour and it is also not correct to state that as per the sale deed dated 10. 12. 1973, the said Kongayammal sold the entire suit property in favour of the plaintiffs. In fact, the father of the defendant and plaintiffs viz. , Palani Naicker was residing in a thatched house lying adjacent to the property of his wife Kongayammal and the said thatched house and adjacent vacant site was considered to be the joint family property and in that property the plaintiffs are having 2/3 share and the defendant is having 1/3 share and that the plaintiffs have put up terraced construction upon the 2/3 share. The alleged sale deed in favour of the plaintiff by Kongayammal dated 10. 12. 1973 is a document for name sake and nothing else and consequently, the suit is liable to be dismissed.