The right to sue for declaration arises when there is a clear infringement on rights, and suits under Article 65 of the Limitation Act allow 12 years for possession-based actions.

JUDGMENT :

P.T. Asha, J.

The unsuccessful plaintiff before the Courts below is the appellant herein. For ease of understanding, the parties are referred to in the same ranking as before the trial Court.

PLAINTIFF'S CASE:

2. The plaintiff had filed a suit O.S.No.26 of 2007 on the file of the District Munsif Court, Theni for declaration and consequential injunction against the defendants 1 and 2 and for mandatory injunction against the fourth defendant.

2.1. The case of the plaintiff is that his father, namely Velayutham Chettiar had purchased the property in S.No.33, measuring an extent of 1 acre and 23 cents of Anjampatti village under a registered sale deed dated10.01.1942. The second defendant is his brother. The property had been purchased from one Lakshmiammal. From the date of the purchase, Velayutham Chettiar was in possession and enjoyment of the same. Thereafter, on 06.03.1965, the said Velayutham Chettiar had gifted an extent of 0.80 cents to the Bhoomidaan Board and retained the southern extent of 0.43 cents. It is this 0.43 cents, which is the subject matter of the suit. On his demise, the property devolved on the plaintiff and the second defendant. Thereafter, under a family release deed, the property fell to the share of the plaintiff and the second defendant. The plaintiff and his brother, the second defendant, have not been cultivating the lands in question and they are lying fallow.

2.2. While so, the first defendant has obtained a fraudulent sale deed from the persons, who are totally unconnected with the property. The sale deed in question appears to be a fraudulent one. On the basis of this fraudulent sale, the first defendant had also obtained a patta on 20.09.1995. On the basis of this patta, which has been fraudulently obtained, the first defendant is trying to create encumbrances in respect of the property, thereby creating a multiplicity of proceedings. From 18.01.2007, the first defendant has been taking steps to encroach into the suit schedule property.

2.3. The plaintiff would further submit that after the death of Velayutham Chettiar, the original owner, the property is now in the enjoyment of the plaintiff and the second defendant. The plaintiff had submitted a petition to the Tahsildar, Theni, on 10.09.2004 to grant the patta in his favour. Since the first defendant has created this fraudulent document, the plaintiff was left with no other alternative except to file the suit for the reliefs that has been set out herein above.

THE WRITTEN STATEMENT OF THE FIRST DEFENDANT:-

3. The first defendant has filed a written statement inter alia denying the contentions raised by the plaintiff. It is his contention that the purchase of an extent of 1 acre and 23 cents by the plaintiff's father, Velayutham Chettiar, was totally false and the same is a fabricated document. That apart, the first defendant had proceeded to deny the gift of 80 cents to the Bhoomidaan Board on 06.03.1965 and would go on to state that the plaintiff was never in possession and enjoyment of the suit schedule property.

3.1. On the contrary, it is the case of the first defendant that the suit property was being cultivated by one K.Subbanaidu till 1972 and thereafter, by one Bojan Chettiar and after Bojan Chettiar, the first defendant has been in possession and enjoyment of the property since 1980 and has been paying the kist in respect of the property. The fourth defendant/the Tahsildar had registered the