MURUGESA NAICKER DIED Vs. M SADAYAPPA NAICKER

JUDGEMENT

(1.) First defendant is the appellant.

(2.) The plaintiff's case is as follows: The plaintiff's father Munusami Naicker purchased the suit property by means of a sale deed dated 7-8-1957 for a sum of Rs. 300/- from one Amitha Bibi and others. The plaintiff and Defendants are the legal representatives of the said Munusami Naicker, being brothers and sister. Munusami Naicker was the Joint Family Manager when he was alive. The second defendant has stealthily applied for sub-division of an extent of 5 cents out of 2.77 acres and manipulated to get the same without the concurrence of the plaintiff. The joint family had sunk two wells from out of the joint family properties. The second defendant is trying to get separate service connection to the joint family well to irrigate his properties which are at a distance. The plaintiff therefore demanded for partition and separate possession by issuing notice. The second defendant has sent a reply with false allegations. The plaintiff has therefore filed a suit for injunction against the Electricity Board giving separate service connection to the second defendant. It was dismissed on the ground that the plaintiff has to seek his remedy by filing a suit for partition. The plaintiff is in joint possession and enjoyment of the properties in which he is entitled to separate 1/6th share and possession. Hence the suit.

(3.) The first defendant filed a written statement stating as follows: There was never a joint family nor any joint family property to be managed since the suit property was purchased by the first defendant out of his own earnings as a plumber in the Corporation of Madras. Out of sentiment, the sale deed was taken in the name of the father. There is no coparcenary property in which the plaintiff could claim in his share. First defendant alone was cultivating the entire property in his own right and taking the income. The claim of the plaintiff that he is in joint possession is not correct. The other members of the family have executed a release deed in favour of the first defendant conceding that they have no right over the suit properties. But, out of love and affection, the first defendant has given some properties to his brothers. When the first defendant offered some lands to the plaintiff, he declined to accept it. A family settlement was arrived at in the year 1964. It is not known why the plaintiff has not pressed his claim for all these two years even though he has issued a notice for partition in 1971. The suit is barred by limitation. The injunction suit filed by the plaintiff is pending in the High Court in Second Appeal. The suit is liable to be dismissed.