MAHALINGAM Vs. RAJALAKSHMI

JUDGEMENT

(1.) THIS appeal has been directed against the decree and Judgment in O.S.No.15 of 1995 on the file of the Court of Additional District Judge,Pondicherry at Karaikal.

(2.) THE admitted case of the parties is that one Kannusamy Padayachi had three sons by name Natesan, Thambusamy and Rangasamy and the plaintiff is the daughter of Rengasamy. THE children of Thambusamy are defendants 1 to 5. THE only contesting defendant is 5th defendant(now after amendment 10th defendant).

(3.) IN the written statement of Mahalingam(D10) adopted by third defendant the 1oth defendant would contend that the averments in the plaint that the plaintiff's father became the absolute owner of plaint "A" and "B" schedule properties is denied. The house was very old one and it was a brick tiled house constructed by Thambusamy out of his own income during his life time. The defendants' father Thambusamy was exclusively in possession and enjoyment of both "A' and "B" schedule properties and he had paid the house tax and land tax and patta stands in the name of Thambusamy Padayachi. He was in open, continuous possession without any interruption and the reason is Rengasamy who is the son of Kannusamy Padayachi was all along abroad and he used to visit his wife Mariammal at Keezhakasakudi. He was no way in connection with the suit properties. He never visited the suit house and Vazakollai at any point of time. Rengasamy died at Singapore whereas his wife Mariammal died at Keelakasakudi in her house. After the marriage of the plaintiff, out of sympathy , a room in the back portion was given to her and she used to reside along with her husband Natarajan who has given troubles often to the fifth defendant and his family members and as a result, she had left the house of her own accord in the month of May 1994. Hence the plaintiff is not in possession of the suit property on the date of filing of the suit. No suit notice was also issued by the plaintiff to the defendants. The fifth defendant is not aware of the Will which was executed on 14.10.1942 said to have been executed by the grand father Kannusamy Padayachi in favour of the father of the plaintiff Rengasamy Padayachi . The Will was not acted upon and the same is invalid. The plaintiff is not aware of the fact that her father Rengasamy Padayachi had executed a sale deed in favour of Thambusamy Padayachi in respect of western half of "A" schedule property and eastern half of "B" schedule property of Thambusamy Padayachi. The said sale deed is dated 26.9.1956. So far the plaintiff has not taken any steps for partitioning the said property by metes and bounds. Rengasamy Padayachi had allowed his brother Thambusamy Padayachi and his son to occupy the entire "A" schedule and "B" schedule properties and as a result the defendants are in possession adverse to the interest of the plaintiff's father and the plaintiff. During the life time, the plaintiff's father Rengaswamy Padayachi has not taken any steps to get possession of the suit properties from the defendants. The defendant and his father have effected major repairs in "A" schedule property and the third defendant had electrified the entire house in the year 1975 from out of his own income. IN the year 1955, the main walls of the house have been damaged and her father Thambusamy Padayachi have effected periodical repairs and in "B" schedule property, the fifth defendant had erected fences on all the sides and he had planted two coconut saplings and three mango saplings and one bamboo bush and he is in possession and enjoyment of usufruct of the those trees. Kannusamy Padayachi did not acquire any property of his own and the alleged Will dated 14.10.1942 is not a genuine one. Both "A" and "B" schedule properties are not liable for partition, since all the defendants have perfected title over the suit property by way of adverse possession. The suit is time barred. The Court fee paid on the plaint is not correct. Hence the suit is liable to be dismissed.