MAYANDI THEVAR AND THAVASI THEVAR Vs. ARUMUGHATHEVAR

JUDGEMENT

(1.) THE defendants are the appellants. THE respondent filed suit O.S. No. 237/80 against the appellants herein before the District Munsif, Paramakudi, for declaration and injunction on the following averments:

(2.) THE suit property and other properties forming one part and two other items were purchased by the respondent's father from Rameswaram Devasthanam on 20.1.1923 for valid consideration. After purchase, the respondent's father was in possession and enjoyment and was paying tax to the Government till he died in 1966. Originally the suit property was in patta No. 113 in the name of the respondent's father. THE suit property and the property attached to it were in old Survey No. 34/2 measuring 4.94 acres. Survey No. 34/1 was south of Survey No. 34/2. After resurvey the said S.No. 34/1 property was sub-divided into 34/1 and 34/2 and S.No. 34/2 (old) was sub-divided into three portions, viz , 34/3, 34/4 and 34/5. THEse three sub-divided survey numbers were divided into three portions north-south and the western most portion was allotted to Pitchandi THEvar, the middle portion to Palchamy THEvar and the eastern most portion to the respondent. THE other brother Mayandi THEvar was not allotted any property in the said survey numbers and he was given some other property. To the portion allotted to the respondent portions in S.No. 34/3 and in S.No. 34/5 were included. Palchamy THEvar also had a portion from the property allotted to him in S.No. 34/3, S.No. 34/4 and a portion in S.No. 34/5. Pitchandi THEvar's property was both in S.No. 34/3 and in S.No. 34/4 and all the sharers were enjoying their respective shares. THE eldest brother of the respondent, Pitchandi THEvar, died in 1972 and Palchamy THEvar in 1973. THEir respective heirs inherited their respective lather's shares. It is not necessary to go into details. THE suit property is in S.No. 34/3-C and S.No. 34/5-B on further sub-division. THE respondent and his predecessors were paying kist for the suit property for more than the statutory period continuously and had prescribed for title by adverse possession. On 21.6.1980, the respondent was cutting the Kattukaruvel trees and the appellant obstructed his claiming right over the suit property. THEre was an earlier suit in respect of old S.No. 34/2 and new S.No. 34/3, 34/4 and 34/5 by the respondent's father Chinna THEvar against Kumarandi THEvar and his brothers in O.S. No. 291/60 on the file of the District Munsif's Court, Paramakudi and it was decided in that suit that S.Nos. 34/3, 34/4 and 34/5 belonged to the respondent's father Chinna THEvar. THE respondent had therefore title to the suit property and he was in possession of the same. As the appellants claimed right over the suit property, the suit for declaration and injunction came to be filed.

(3.) TO appreciate the actual dispute between the parties it is necessary to have a genealogy which is as follows: Table From the genealogy, it is seen that Chinna Thevar and Muthirulandi Thevar were the sons of one Periya Mayandi Thevar. Chinna Thevar died in the year 1966 leaving behind four sons Pitchandi Thevar, Palsamy Thevar, Arumuga Thevar and Mayandi Thevar. Pitchandi Thevar died in the year 1972 leaving behind his son Thavasi Thevar. Palsamy Thevar died in 1973 leaving behind his sons Thavasi and Chelliah. The third son Arumuga Thevar is the plaintiff in the suit and the respondent in the Second Appeal. Muthirulandi Thevar died in the year 1956 leaving behind Mayandi Thevar and Thavasi Thevar, the defendants in the suit who are the appellants. It is seen from the materials on record that the brothers Chinna Thevar and Muthirulandi Thevar constituted a joint family along with their father Peria Mayandi Thevar. It is also seen that the joint family owned ancestral properties. The respondent pleaded a partition about 65 years prior to the suit, whereas the appellants pleaded a partition after Ex. A-1 dated 1923 in or about 1940. The decision in the Second Appear will depend on as to when the partition between the brothers took place. In the reply statement, the respondent had pleaded that the partition was 65 years prior to the suit. There is absolutely no material to substantiate this case. For the Partitions pleaded by both the parties, there is no documentary evidence. Only on the basis of the other materials, documents and oral evidence we have to fix the date of the partition..