RAMAKRISHNAN Vs. GURUSAMY

JUDGEMENT

(1.) Aggrieved over the concurrent finding of the lower Courts in dismissing the suit filed for declaration and injunction in respect of the suit property, the above second appeal is filed.

(2.) The parties are referred as per their ranking before the Trial Court. The brief case of the plaintiff is as follows:-

(3.) The case of the defendants 1 and 2 is that the suit property was never in possession of the plaintiffs at any point of time and the plaintiffs have suppressed the relationship of the parties in the suit. The defendants never tried to encroach upon the suit property. In fact, the defendants father one Ganapathi Pandaram and the first plaintiffs father Ariyanathan Pandaram were brothers. The defendants father Ganapathi Pandaram was practising in country medicine and used to go foreign countries. In the year 1920 he was in Rangoon and he sent his earnings to his brother Ariyanathan Pandaram. From the above amount, since Ganapathi Pandaram was in Rangoon, the suit property was purchased in the name of Ariyanathan Pandaram. Thereafter, in the year 1921 there was an oral partition between the two brothers, in which the suit property was allotted to the defendants' father. The southern part of the suit property was allotted to Ariyanathan Pandaram. After such oral partition, a common wall was put up between the two shares and the brothers were enjoying their respective share by putting up construction. The defendants were in continuous possession of their father's share after his death. Prior to that on 20.11.1922, 25.06.1934, 26.07.1940 and 30.11.1954, the property allotted to the defendants' father was mortgaged and redeemed. In the abovesaid mortgage agreements, the allotment of the property to the defendants father is clearly mentioned. Thereafter, in the year 1962 a fire accident occurred, in which houses of the respective 'brothers have burnt and thereafter in the presence of Panchayatdars again a common wall was built up, in respect of which an agreement was also entered into. Suit property are in the possession of the defendants. Taking advantage of the fact that suit property are vacant land and that the defendants were in Madurai doing tailoring business, the plaintiffs encroached upon the suit property and put up a shed on 01.07.1990 and the same was removed. Thereafter a criminal case was also registered and the same was pending between them. Hence, the case of the defendants is that the plaintiffs are not entitled to share.