SUNDARARAJAN Vs. MAHALINGAM @ CHOCKALINGAM

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree made in A.S.No.8 of 1997, dated 23.9.1998, on the file of the Additional District Judge/cum -Chief Judicial Magistrate, confirming the judgment and decree made in O.S.No.407 of 1986, dated 7.9.1990, on the file of the District Munsif, Aranthangi.

(2.) THE gist and essence of the averments in the plaint is as follows: The suit property originally belongs to one Vettikaruppan. He is having three sons by name Aavan, Samban and Velu. Samban is having only one daughter by name Karupayee and she is the plaintiff herein. The plaintiff and her parents reside at Srilanka. She got married to one Muthusami of Aranthangi. The third son of Vettikaruppan has died leaving behind the second defendant Mahalingam, who is now residing at Sri Lanka. Aavan died 35 years ago. Aavan has four daughters and one son. His only son and wife died long back. The son died without marriage The four daughters are by name Aaki, Karupayee, Aarayee and Lakshmi. Out of them, Aaki is at Srilanka. The first defendant had married the second daughter of Aavan. The plaintiff has purchased the property of Aavan under a sale deed dated 6.12.1948. After purchase, he handed over the same to Aavan and left to Sri Lanka. Then she returned back only in the year 1976 and resides in India permanently. After the death of Aavan, his son -in -law, the first defendant herein has managed the suit properties belonging to Aavan. During the lifetime of Aavan, he obtained a settlement deed in respect of the joint family properties, under influence. Aavan has no right to execute a settlement deed in favour of the first defendant herein. In pursuance of the settlement deed, he obtained a patta in his name. Now only, the plaintiff came to know that the patta stands in the name of the first defendant herein. But the first defendant has not acquired any right in the suit properties. As soon as the plaintiff returned from Sri Lanka, the first defendant handed over the item No.1 of suit properties which is a house site and a portion of the suit properties to her. The plaintiff was demanding the father's one third share in the suit properties. But the defendant has denied the same, but, obtained a patta in his name. So the plaintiff preferred an appeal before the District Revenue Officer, Aranthangi in turn who gave a direction to work out the remedy before the proper civil forum. Hence, the plaintiff has come forward with a suit for declaration that the suit properties jointly belongs to the plaintiff and second defendant and for possession of suit properties from first defendant to plaintiff and second defendant and for costs.

(3.) THE gist and essence of the written statement filed by the first defendant is as follows: The suit is not maintainable both in law and facts. The relationship is not an admitted one. Vettikaruppan has only one son by name Aavan. The first defendant is the son -in -law of the said Aavan. The geneology is not correct. The first defendant is not aware about the second defendant. The plaintiff is also not the daughter of Samban. It is also not true to say that the plaintiff came to India in the year 1948 and obtained the alleged sale deed dated 6.12.1948. It is also false to state that the plaintiff entrusted the purchased properties with the said Aavan and then went to Ceylon. The fact that the first defendant managed the suit properties belonging to Aavan is absolutely false. The first defendant did not obtain any settlement deed from the said Aavan, since the said Aavan has no right over the suit properties. Kist receipts filed by the plaintiff are not related to the suit properties. The first defendant's wife Karupayee, Aaki, Aarayee and Lakshmi are daughters of Aavan and now Aaki is residing at Ceylon. The first defendant married Karupayee, the daughter of Aavan. There is no relationship between the plaintiff or second defendant with the first defendant or first defendant's wife. The first item of the suit properties in S.No.229/3, 0.13 cent belonged to one Saminatha Thevar. He sold the same besides another properties to the first defendant and his brother under a registered sale deed, dated 22.5.1954. This defendant's brother also died long ago without any issue. This defendant is the absolute owner of the first item of the suit properties. The second and third item of the suit properties are the ancestral properties of this defendant. This defendant is the absolute owner and in possession of the same. So patta has been granted in the name of this defendant. The local name of the second item of the suit properties is "Sanjaya Punjai" and third item is "Veeramarathu Punjai". The local name of the first item of the suit properties is "Kanakkan Sei Nangai". Thus, this defendant is in continuous and uninterrupted possession and enjoyment of the suit properties and also has adverse title to the same. U.D.R. patta has been granted in the name of this defendant for the suit properties and second item of the suit property has been sub -divided into New Survey No. 272/3A and 272/3B. The plaintiff came to India as a repatriate from Sri Lanka about seven years ago and after obtaining loan from the Government under the repatriate scheme, this defendant is residing at Nattumangalam. This defendant never gave any property to the plaintiff. This plaintiff with a mala fide intention filed petition before the Revenue Divisional Officer, Aranthangi, with respect to the second and third item of the suit properties, by claiming one third share thereon. The plaintiff restricted her right before the Revenue Divisional Officer only to one third of alleged share, wherein, now the plaintiff is claiming the entire extent of the suit properties. The plaintiff is not having any right over the suit properties. The plaintiff is not impleading the other daughters of Aavan in the plaint. The suit is barred by non -joinder of necessary parties. The plaintiff did not demand partition as on 20.4.1984. No cause of action arose for the same. Hence, he prayed for the dismissal of the suit.