AMIRTHAVALLY Vs. N RAMASAMY

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 9.4.1992 on the file of the learned Additional District Judge, Pondicherry at Karaikal.

(2.) THE suit in O.S.No.16 of 1990 was preferred by the first respondent praying for a decree of declaration and consequential injunction in respect of the suit property.

(3.) THE defendants resisted the suit. In the written statement filed in O.S.No.16 of 1990, the second defendant contended thus:-(a) THE brothers have never entered into any oral partition as stated in the plaint. THE properties were neither divided, demarcated nor separated from anyone's possession. THE parties had never been in separate possession and enjoyment of the various items of properties. THEre has been no partition at all between the parties. THE recording of the oral partition on 25.3.1976 was totally false. THE parties have not become independent owners of any of the items of properties. (b) During the life time of Muthukumarasamy, the properties were in common enjoyment. After his demise the parties are cultivating different portions of the properties. Even now there is no partition. Item Nos.5 to 9 of the suit properties are the absolute properties of Muthukumarasamy. After his death the defendants inherited the property and as such they are in absolute possession and enjoyment of the same. THE plaintiff has no semblance of right to those items and as such the plaintiff has no right to seek a decree of declaration. (c) Both the plaintiff and his brother Muthukumarasamy arranged to sell the undivided property and it was wrong to state that Muthukumarasamy alone arranged to sell some of the properties. All the sales have been done by the brothers and that itself would go to show that there was no partition in the family. Accordingly the second defendant prayed for dismissal of the suit.ISSUES:-