S NANJAYYA GOUNDER Vs. S K MERUGIRI

JUDGEMENT

(1.) THE first defendant, who suffered a decree for declaration of title before the courts below prefers the present second appeal.

(2.) THE plaintiff filed the suit for declaration of title and also for recovery of possession. The court below, having rejected the plea for recovery of possession, granted a decree for declaration of title in favour of the plaintiffs.

(3.) THE plaintiffs would contend that the first defendant Nanjaiya Gounder and one Thoddanna Gounder are his brothers. The second defendant is alleged to be the tenant of the suit property under the first defendant and defendants 3 to 5 are the sons of the second defendant. The suit property is a maaniyam inam land. The first plaintiff's father Subbe Gounder executed a Will dated 5. 7. 1939 allotting share to each of his sons. Under the said Will, the suit property was allotted to the first plaintiff. Though the said Will was cancelled on 28. 9. 1946, Subbe Gounder insisted that the division of the property must be as per the Will. The brothers of the first defendant and the first plaintiff executed a partition deed dated 16. 11. 1957 between themselves and allotted the suit property to suit their convenience. The partition deed refers as if the suit property was allotted to the first defendant. The said partition deed has no legal force as against the first plaintiff. The first plaintiff and his brothers were on loggerheads and were inimically disposed of right from the year 1954. In the year 1967, the suit property was given riotwari patta under the minor Inam Abolition Act in the name of the first plaintiff and the first defendant. In the year 1978, the first plaintiff sold 5 cents of land to one k. N. Vasu. Having thus alleged, the first plaintiff prays for declaration of his share in the property and also for recovery of possession with respect thereto.