IMPORTANT POINT
The presumption of equal partition among co-owners and the burden of proof lies with the party asserting a claim to property, as established under Section 101 of the Evidence Act.

JUDGMENT :

THE HONOURABLE Ms. JUSTICE P.T. ASHA

Prayer: Second Appeal is filed under Section 100 of C.P.C against the Judgement and the decree dated 03.12.2020 in AS.No.28/2019 on the file of the Principal Sub Court, Kallakurichi, reversing the Judgement and the decree dated 22.03.2019 in OS.No.366/2010 before the I Additional District Munsif Court, Kallakurichi.

The 1st defendant is the appellant before this Court. This Second Appeal is filed challenging the concurrent judgment and decree that has been passed against the 1st defendant in a suit O.S.No.366 of 2010 on the file of the I Additional District Munsif Court, Kallakurichi filed for declaring the plaintiff’s tile to the suit property, to recover possession of the same and for damages from the date of the suit till the date of handing over possession. The facts are briefly set out herein below and the parties are referred to in the same ranking as before the Trial Court.

2. The suit property is an extent of 36 cents out of a total extent of 1.72 acres comprised in S.No.257/10, Vadathorasalur Village, Thiagadurgam, Kallakurichi. The suit property is stated to be bounded on the east by a channel and the plaintiff’s land, South by a channel, north by Sukumar’s land and west by defendant’s land.

3. Originally when the suit was filed, the suit property was described as comprised in S.No.257/10. Later, an amendment was brought about to amend the survey number as 257/10E which was allowed.

4. It is the case of the plaintiff that the property belonged to one Pitchan. On 11.08.1972, the said Pitchan had settled the property on his wife Ayammal and her sister’s son, Kannan. After the settlement the said Ayammal and Kannan were jointly enjoying the property and after Ayammal’s death, the said Kannan was enjoying it exclusively. On 08.07.1983, he had sold the property and other properties to the plaintiff who since then has been in possession and enjoyment of the same. The plaintiff has also obtained patta in respect of the suit schedule property.

5. The plaintiff would contend that defendants 2 to 6 who have no right in the suit property have been disturbing the plaintiff’s possession. The defendants were taking advantage of the fact that when patta was granted the plaintiff was shown as possessing a lesser extent of 50 cents instead of 86 cents. The 1st defendant has therefore sold this 36 cents to defendants 2 to 6 and as they were interfering with the plaintiff’s possession and enjoyment of the property, the plaintiff had come forward with the suit in question for the reliefs stated supra.

6. The 1st defendant had filed a written statement which was adopted by the 7th defendant. The defendants denied the plaintiff’s claim. It is their contention that the suit property has not been properly described. After the UDR scheme in 1984 S.No.257/10 has been subdivided as S.Nos.257/10A to 257/10G. The plaintiff has not been able to clearly described in which sub-division the suit property is situate. It is their contention that the plaintiff is in the enjoyment of an extent of 0.20.5 ares in S.No.257/10F. The lands comprised in S.No.257/10A to S.No.257/10E together with the half share in the well and pump set situate in S.No.257/10G belongs to the defendants. Originally these lands belonged to one Kaadayan and others from whom defendants had purchased the property. The defendants would further go on to state that on 22.02.2002 and 07.04.2002 the defendant had purchased portions of the property from Kaadayan's legal heirs. Thereafter, under sale deeds dated 08.09.2000 and 27.09.2001 the other portion in S.No.257/10A to S.No.257/10E and half share in the well was purchased by one Sukumar from Kaadayan's legal heirs. This fact was also known to the plaintiff. On 14.05.2003, the 1st defendant purchased the property from Sukumar. The defendants would further submit that the genealogy of Kaadayan does not include the plaintiff’s predecessors in title.

7. The defendants would submit that the plaintiff