C JAGADEESAN Vs. C KISHTAN

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 103 of 1993 on the file of Sub Court, Arni by the plaintiff, who has lost his case before the Courts below.

(2.) THE short facts of the plaintiff's case in the plaint are that the suit is filed for declaration of his title, for recovery of possession of the suit property from the defendant and also for mesne profits. The plaint schedule property originally was lying as a vacant site. The plaint schedule property was purchased by the father of the plaintiff and the defendant viz. , Chinnasamy Udayar on 1. 9. 1952 from one Murugesa Chettiar. After the purchase of the plaint schedule property, the said Chinnasamy Udayar had constructed a terraced house and was in possession and enjoyment of the same. Apart from the said house in the suit property, Chinnasamy Udayar also had three houses and he permitted each of his sons to live in the said house separately. The defendant is residing in the plaint schedule property only with the permission of his father, Chinnasamy Udayar. The said Chinnasamy Udayar, the father of the plaintiff and the defendant had executed a settlement deed in respect of the plaint schedule property on 18. 1. 1982. The plaintiff has accepted the said settlement. After the said deed of settlement , the plaintiff approached his brother defendant to vacate from the plaint schedule house and to hand over the possession of the same. But without any acceptable reasoning, the defendant continuous to stay in the plaint schedule property. The plaintiff has issued a suit notice on 18. 7. 1986 for which the defendant has issued a reply notice containing false allegations. The plaint schedule property is a self-acquired property of the plaintiff and defendant's father Chinnasamy Udayar. There was no partition entered into between the parties. Hence the suit.

(3.) THE defendant in his written statement would contend that the plaint schedule property was originally lying as a vacant land and subsequently the father of the plaintiff and the defendant Chinnasamy Udayar had constructed a house in it. The plaint schedule property was not purchased out of the income of Chinnasamy Udayar. On the other hand, from out of income derived from the joint family property only, the plaint schedule property was purchased by the father of the plaintiff and defendant viz. , Chinnaswamy Udayar. Originally, the suit property is a joint family property. During 1965, the ancestral properties of Chinnasamy Udayar along with other properties were orally partitioned between his sons Velayutham, Krishnan, Subramanian, and Jagadeesan. From that date onwards, the sons are in possession and enjoyment of their respective shares independently. The defendant has constructed a house in the property allotted to him in the oral partition towards his share. The defendant is in the suit property from 1965 onwards. The alleged settlement is not valid. Hence the suit is liable to be dismissed.