GOVINDAROYAN Vs. MUTHUKRISHNAN

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and judgment in A. S. No. 196/1994 on the file of the Additional District Judge, Villupuram. The plaintiff who has lost his case before both the courts below has preferred this second appeal. The plaintiff filed O. S. No. 486/1988 before the Principal District Munsif, Villupuram, for declaration and consequential permanent injunction in respect of the suit property.

(2.) THE short facts of the case of the plaintiff in the plaint relevant for deciding this appeal are as follows:-The suit property originally belonged to one Vellan, who had two sons by name Samykannu and Nagappan and a daughter by name Sambatha. The suit property is S. No. 394/1b measuring 0. 65 cents. After the death of Vellan both the sons and the daughter Sambatha have partitioned the above said property taking each 0. 22 cents. The plaint schedule property was allotted to the share of Sambatha after partition. The parties were in possession and enjoyment of their respective shares. The plaintiff's father Kannan was residing about 3 to 4 furlongs away from the suit property along with his father. The plaintiff's father got married in the year 1969. Since the hut of the plaintiff's father got damaged in fire, he along with his father had put up another hut in the suit property with the permission of Sambatha. Plaintiff's father was paying land tax and house tax. Patta No. 63 was assigned to the suit survey number property. Plaitniff's grand father had put up a hut on the north of the suit property and was residing. The plaintiff from his birth residing in the hut situated in the suit property. The first defendant is residing 1 = furlongs away from the plaint schedule property in his hut. Plaintiff's grant father has put up a hut = furlong North of the first defendant's hut. The second defendant has put up a hut about 100 feet away from the hut put up by the plaintiff's grant father. The defendants are permanently residing for the past 20 years in the above said hut. The plaintiff's father was in the suit property after getting necessary permission from the original owner and he has subsequently purchased the suit property from Sambatha for Rs. 4,000/ -. As per the above said sale deed, the plaintiff's father was enjoying the plaint schedule property and he is in possession adverse to the interest of other sharers from 1960 onwards. The second defendant after knowing that the plaintiff has purchased the share of Sambatha had purchased in the suit survey number an extent of 0. 12 cents from Samykannu and his sons on 05. 02. 1987. The first defendant also claims right in respect of 0. 22 cents in the plaint schedule property on 14. 12. 1987 from the said persons. In the above said sale deeds, the boundaries for the property purchased under the said deeds were not correctly mentioned. The vendor has no valid title to convey any right under the above said sale deed in favour of the defendants. During the last week of November, 1987, the defendants made an attempt to interfere with the possession of the plaintiff in respect of the suit property. Hence, the plaintiff issued a notice dated 21. 11. 1987. In the said notice, the plaintiff has inadvertently mentioned that his house was constructed with stone. Plaintiff has received a reply notice dated 01. 12. 1987. Hence, the suit.

(3.) THE second defendant has adopted the written statement filed by the first defendant as follows:-The extent mentioned as 0. 65 cents in the suit survey No. 394/1b in the plaint is not correct. The total extent of the suit survey number property is 0. 68 cents. The suit property was allotted to the share of Vellan, who had two sons by name Samykannu and Nagappan and a daughter by name Sambatha. But there was no partition entered into between them and the allegations in the plaint that they were each allotted 0. 22 cents in the suit survey number property is false. It is also not correct to say that the plaint schedule property was allotted to the share of Sambatha. Sambatha was never in possession and enjoyment of the suit property at any point of time. The hut in the suit property was not put up by Sambatha. The patta No. assigned to the suit survey number property was 63 and not 81. The plaintiff is not in possession of the suit property from the date of alleged sale deed dated 12. 12. 1986. The plaintiff has not prescribed title by way of adverse possession. After the marriage in the year 1983 Sambatha never visited the suit survey number property. Samabatha's father Vellan died on 09. 12. 1943. After the death of Sambatha's father Vellan, Sambatha had no right or title over the suit property. The sons of Vellan namely Samykannu and Nagappan have partitioned the entire 0. 68 cents in the plaint survey number property in equal moieties and they are enjoying their respective shares from the date of death of Vellan in the year 1943. The correct boundaries to the suit properties were not furnished in the schedule to the plaint. There is discrepancies in the four boundaries for the property scheduled to the notice issued by the plaintiff dated 21. 11. 1987. The first defendant has purchased 0. 22 cents from Samykannu on 14. 12. 1981 and as per the partition dated 09. 03. 1983, the defendants have divided the said 0. 22 cents equally among themselves allotting 0. 11 cents each. The sale deed dated 14. 12. 1981 will bind the plaintiff. The suit survey No. 394 has been sub-divided into Survey No. 394/1b/1 measuring 0. 10. 5 ares. The second defendant had purchased the remaining 0. 12 cents on 5. 2. 1987 from Samykannu, one of the sons of Vellan. The sons of Nagappan had executed a sale deed in respect of 0. 18 cents in favour of third parties and they are in possession and enjoyment of the remaining extent of 0. 16 cents in the suit survey number property. The tax receipts produced by the plaintiff are not related to the plaint schedule property. The Court fee paid in the plaint is not correct. The defendants never made any attempt to interfere with the possession of the plaintiff in respect of the suit property. Hence, the suit is liable to be dismissed.