A CHINNARAJA Vs. N S SUBBAIYAH

JUDGEMENT

(1.) This revision under Art. 227 of the Constitution of India, is filed by the first defendant in O.S. No. 100 of 1997, on the file of sub court, Palani. Two plaintiffs, who are respondents herein, filed the said suit, to direct the first defendant to surrender possession of the property to the plaintiffs, and directing him to pay a sum of Rs. 3,000 being the value of firewood and seized timber to the plaintiffs, with interest at 18% per annum from date of suit till payment, and also to direct an enquiry into the past and future mesne profits under Order 20, Rule .12 CPC, and to grant permanent injunction restraining the first defendant and his men front putting up any further construction in the suit property and a|so award costs of the suit, and grant such further reliefs.

(2.) Facts narrated in the plaint may briefly be stated thus: First plaintiff is the son of late N.R.S. Ramasamy Chettiar. Between himself and his father, there was a partition on 22.5.1964. Plaint schedule property was one of the items allotted to his father late N.R.S. Ramasamy Chettiar. It is not disputed that pursuant to the partition, Ramasamy Chettiar had obtained absolute right and exclusive right over the same. It is seen that Ramasamy Chettiar executed a Will on 30.1.1980, bequeathing all his properties to the second plaintiff herein, who is also the son of the first plaintiff. There was difference of opinion between first plaintiff and his father. The Will was cancelled. The father also began to deal with the property and sold the plaint schedule item to a third person. There was a suit filed by the very same first plaintiff as O.S. No. 183 of 1988, on the file of Subordinate Judge, Periakulam. That suit was to restrain the late father, by a permanent prohibitory injunction from alienating or dealing with the properties retained by him and also from interfering with the possession of those properties by the first plaintiff herein. In that suit, the plaint property was not an item. In that suit, it was further stated that the father has already executed a sale deed, in favour of a stranger, and the first plaintiff reserves his right to have the same impeached in appropriate proceedings. In that plaint, the first plaintiff herein also referred to a family arrangement dated 19.1.1987 and the allegation was that the father is alienating the properties violating the terms of the family arrangement.

(3.) A detailed counter affidavit was filed by the father in that suit, wherein he admitted the execution of the family arrangement of 1987 and the circumstances under which he revoked the Will already executed by him. He also contended that he continued to be the absolute owner of all the properties obtained by him under the 1964 document, and the so called family arrangement never came into effect, and it is an unregistered deed. He also denied having received any amount from the first plaintiff, but contended that certain documents were fabricated by the first plaintiff, exploiting his weakness and old age. He also alleged that he is residing away from the first plaintiff's house and the first plaintiff was also not maintaining him ever since the date of the so called family arrangement. He also said that all the properties excepting one that has been sold by him continues in his possession