K LOGANATHAN Vs. PUNNIAKOTTI NAICKER

JUDGEMENT

(1.) THE unsuccessful plaintiff in the Courts below is the appellant herein. The plaintiff filed a suit for a declaration that he is entitled to the entire suit property and also for a permanent injunction. The suit property is a house site with superstructure measuring 13th feet east-west to north-south along with backyard trees etc. , in Kamakshiammankoil Sannadhi Street, Kanchipuram, bearing T. S. No. 873 and D. No. 60-B.

(2.) THE case of the plaintiff is that he is the son of the second defendant Kuppusami Naiker and the first defendant, Punyakoti Naiker, is the brother of the second defendant and therefore he is the paternal uncle of the plaintiff. One Varadappa Naiker the grand father of the plaintiff had two sons namely the defendants and one daughter-Jayammal. The said Varadappa Naiker among his brother have divided many years ago and the schedule property was purchased by the said Varadappa Naiker absolutely on 06. 12. 1954 and the said Varadappa Naicker has been in absolute possession and enjoyment of the same. The said Varadappa Naicker, the absolute owner of the property, has executed a registered settlement deed in favour of the plaintiff on 01. 11. 72 out of love and affection and at that point of time since the plaintiff was minor, the said Varadappa Naiker has put the second defendant the father of the plaintiff in possession of the property till the plaintiff attains majority. According to the plaintiff, the settlement was given effect to and the plaintiff was put in possession after he attained majority the suit property has been assessed by the municipality in the name of the plaintiff who has paying the tax etc. , However, the first defendant has applied for transfer of property tax in respect of the suit property and thereafter, the plaintiff came to know that the defendants have entered partition in December 1974 under which the first defendant was allotted the suit property. It is also the plaintiff case that pursuant to the said partition, the first defendant has not taken the possession. The plaintiff would also allege collusion between the first and second defendants. In these circumstances, the plaintiff has filed the above suit. The second defendant remained exparte throughout and the first defendant filed written statement and contested the suit.

(3.) ACCORDING to the first defendant, the suit property was purchased from among the joint family nucleus. The settlement stated to have been executed in favour of the plaintiff on 1. 12. 72, has never been given effect to. As per the partition dated 19. 12. 74, between the first and second defendants the back portion of the suit property was allotted to the first defendant and the front portion of the suit property was allotted to the plaintiff and his father, the second defendant and the said allotment is also to the knowledge of the plaintiff. It is also the case of the first defendant that as per the said partition dated 19. 12. 74, the settlement has been cancelled.