N BALASUBRAMANIA PATTAR Vs. S KANDASAMY PATHAR DIED

JUDGEMENT

(1.) THE aggrieved defendants have preferred the Second Appeal against the judgment and decree in A.S.No.32 of 1985 on the file of Sub Court, Nagapattinam dated 18.10.1985.

(2.) THE case of the plaintiff is as follows: THE plaintiff filed a suit for declaration as well as recovery of possession. THE suit property is a shop situate in Poonthottam bazaar. THE 1st defendant is none other than the plaintiff's father's brother's son. THE 2nd defendant is the son of the 1st defendant. THE father of the plaintiff did when he was young and, as such, the plaintiff and Narayanasamy Pathar were residing jointly and looking after the family business. THEre was partition on 17.7.1957, in which the suit property fell to the share of Narayanasamy Pathar, who is the plaintiff's father's brother. THEre was misunderstanding between Narayanasamy Pathar and the 1st defendant and as such, Narayanasamy Pathar was residing with the plaintiff for a period of 10 years, the plaintiff was looking after Narayanasamy Pathar. Even under the partition deed, no house property was allotted to the plaintiff. Narayanasamy Pathar has promised to construct a house to the plaintiff, but he could not carry out the same. Because of this, Narayanasamy Pathar executed a settlement deed in favour of the plaintiff on 26.2.1969 and the plaintiff was also accepted the same and he was put imposition and enjoyment of the property. THE assessment was also transferred in the name of the plaintiff and he has been paying the house tax as well as electricity charge. Moreover, he has also rented out the from portion to three persons for the purpose of running a tailor shop fruit shop and sweet stall. THEre is also a trust in the family of the plaintiff and Narayanasamy Pathar. According to him, he has been doing daily pooja and also conducting "Krithigai" festival during every month of "Panguni" During the last days of Narayanasamy Pathar, taking advantage of his old age, the 1st defendant joined him in March 1973. THE 1st defendant gave trouble to the plaintiff for recovery of the property. On 14.12.1973 when the plaintiff was not available in the property, the 1st defendant, his father and the relatives have trespassed into the property and the son of the plaintiff was driven out and demolished the name board and removed it and illegally occupied their property. THE plaintiff gave a complaint in the police station also and in the criminal case, the 1st defendant and his father were convicted, but in the appeal, the conviction was set aside.

(3.) AFTER the filing of second appeal, the plaintiff died and respondents 2 to 8 were impleaded as legal heirs The points for consideration are: