Claim of property as joint family property has to be proved by the claimant.

Subsequently, the plaint was amended transporting the second respondent as the second plaintiff and including certain averments that the said Thayarammal had filed the suit O.S.No.726 of 1987 and had obtained a preliminary decree and that, final decree on the foot of the mortgage deed and that, she had brought the suit property to sale and that, the second respondent had purchased the suit property in the Court auction sale held on 15.4.1989, which was duly confirmed and that the sale certificate was also issued. When the second respondent went to take delivery of the suit property the appellant and the fourth defendant, who is the fourth respondent raised obstruction. The suit was decreed and delivery was ordered. Against that an appeal and C.M.A. were filed, and they failed. Therefore, the present two appeals have been filed.

2. Mr.Viswanathan, learned counsel for the appellant would submit that the property was never intended to be the exclusive property of the first respondent. Valuable property had deliberately been sold by the first respondent to the second respondent herein to defeat the rights of the co-owners. Both the Courts had totally failed to appreciate the evidence of the respondents. It is the case of the first respondent in the plaintiff that was originally filed, that the appellant was in possession as a cultivating tenant. The court below had rejected that there was a tenancy agreement. While doing so, it failed to render a correct finding regarding the nature of possession of the appellant. It was not the first respondent’s case that the appellant was an encroacher. If the appellant’s possession is neither illegal nor traceable to a tenancy agreement, then it follows his possession is as a co-owner. The explanation given by the appellant for the attestation of the sale deeds were wrongly rejected by the Court below. The parties are poor agriculturists, and may not have formal proof of their possession. He would also submit that Ex-B3 notice would show that the case of the respondents is that the appellant is a cultivating tenant. Therefore, according to the learned counsel, if he is a cultivating tenant, then he can only be evicted in accordance with the provisions of Act 25 of 1955. But if they are not cultivating tenants then they are co-owners and suit cannot be decreed. The learned counsel would therefore, pray that the judgment and decree of the Court below be set aside.

3. The learned counsel for the respondent on the other hand would submit that the case of the cultivating tenancy itself was set up by the first respondent only so that the second respondent would be prevented from getting possession of the property which was purchased in the Court auction sale. He would submit that the appellant cannot sustain two conflicting characters of possession one as a joint family owner and the other as the cultivating tenant, the two cannot co-exist. It was submitted that there was absolutely no proof of joint family funds. The appellant knew fully well that the property belongs exclusively to the first respondent who pass his title and interest in the property free of any encumbrance. The first defendant, the father had attested the sale deed in favour of Vanajakshi and therefore, the appellant was estopped from disputing the title of the first respondent. It is not open to the appellant to claim that they had any right in the suit property either as joint owners or as tenants. Ex-B3 notice was brought about to defeat the legal rights of the respondents. The concurrent findings of fact that the property is not family properties cannot be easily reversed in second appeal. He would also submit that the appellant cannot claim any relief on the basis of Ex-B3 notice because his case is that he is a co-owner and no person can be co-owner and a tenant at the same time. Therefore, the appeals shall be dismissed.

4. The substantial question of law that was framed at the time of admission of the second appeal is