JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 07.04.2011 made in A.S.No.91 of 2010 on the file of the Principal Sub Court, Mayiladuthurai, reversing the judgment and decree dated 22.02.2010 made in O.S.No.373 of 2004 on the file of the learned Principal District Munsif, Mayiladuthurai.)

1. This Second Appeal is focused as against the judgment and decree dated 07.04.2011 passed in A.S.No.91 of 2010 by the learned Principal Subordinate Judge, Mayiladuthurai, reversing the judgment and decree dated 22.02.2010 in O.S.No.373 of 2004 passed by the learned Principal District Munsif, Mayiladuthurai.

2. The suit is for recovery of possession, directing the defendant, to surrender possession of the entire suit properties.

3. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

4. The laconic averments made in the plaint, are as follows:

[i] The suit schedule properties originally belongs to one Dharmalingam, who has died on 26.08.1998. When he was alive, he executed a Will dated 10.08.1998, through which, he bequeathed the entire suit properties to the plaintiff. The defendant Annadurai is the brother of the plaintiff Ganesan. Apart from the plaintiff and the defendant, the deceased Dharmalingam, blessed with 3 daughters. The marriage of the three(3) daughters were celebrated by the plaintiff alone. The marriage of the defendant was also met by the plaintiff. After the marriage, the defendant went away from the family and residing at Thoppu Theru, Manolmedu Village.

[ii] The Will alleged to have been executed by the said Dharmalingam, which came into effect immediately after his death i.e. on 26.08.1998. The suit first item bears R. Survey No.7/6 and it measures 9 cents = 27 kulis. In the said property, there was a residential thatched house is located. The house is situated in a total extent of 2 kulis. The remaining extent are lying vacant and in the possession of the plaintiff. During the time of his father’s death, after knowing the fact that the said property is in the possession of the plaintiff, the defendant came and occupied the same. Afterwards, he continued to remain in the possession and refused to vacate the same.

[iii] The location of the house is shown in the plaint plan as ABCD. The house portion was marked as AEFG, DA portion is a vacant land under the possession of the plaintiff. The remaining suit lands are in the possession of the plaintiff. The defendant do not have any right over the ABCD portion and he is bound to vacate the house and handover the possession to the plaintiff.

[iv] The Will dated 10.08.1998 is a last Will and testament. In the Will dated 10.08.1998, there was some mistake in Survey Number in respect to the suit second item of the property. Though the plaintiff requested the defendant to vacate the said house, the defendant did not response to the same. Therefore, the plaintiff is constrained to file the suit for the recovery of possession of ABCD portion. After filing the suit baring the portion ABCD, the remaining portion was also encroached forcibly by the defendant and he is in occupation. For the notice dated 29.12.2007 sent by the plaintiff, there was no response from the defendant. Hence, the suit.

5. The case of the defendant, as averred in the written statement, is as follows:

[i] The suit properties are not the absolute properties of the deceased Dharmalingam. The suit properties were purchased by Dharmalingam by utilising the earnings of the plaintiff and the defendant. The deceased Dharmalingam never executed any Will as alleged. The deceased Dharmalingam died intestate. The alleged Will is a forged one. It is not correct to state that the plaintiff alone celebrated the marriage of his 3 sisters. The plaintiff himself conducted his marriage against the wishes of his parents and after marriage, he left the parents.

[ii] The suit first item of the pr