A suit for declaration of property rights is valid only if the plaintiff can establish ownership despite a misdescription in documentation; mere misdescription does not equate to rectifiable error.

JUDGEMENT

This second appeal has been preferred, challenging the judgement of the learned Subordinate Judge Court, Dharapuram, dated 09.04.2010 made in A.S.No.13 of 2009, confirming the judgement and decree passed in O.S.NO.70/1999 dated 29.12.2008 on the file of the District Munsif Court, Dharapuram.

2. The appellant is the plaintiff who has filed the suit for declaration in respect of the 1/3rd right in the well in S.No.672/2 and the consequential permanent injunction restraining the defendant from interfering with his enjoyment of his 1/3rd right in the Well. The defendants 4 and 5 remained ex parte.

3.The short facts pleaded by the plaintiff in his plaint:

The defendants 1, 4, and 5 are brothers and sisters. The 2nd defendant is the 1st defendant's brother’s wife. The 3rd defendant is 1st defendant's brother's son and the brother of the 1st defendant, namely Somasundaram is no more and defendants 2 and 3 are the legal heirs of the deceased Somasundaram. The suit property belongs to the plaintiff by virtue of a Sale deed dated 29.11.1975. The suit properties are the defendants’ family properties. The plaintiff has purchased the suit property from the 1st defendant and his deceased brother, Somasundaram. The plaintiff has purchased 1 acre in S.No.672/1 from the the 1st defendant and his brother, and the rest of the portions in S.No.672 were retained by the 1st defendant and his brother. The survey number of the suit property was originally 672. When the plaintiff has purchased a portion of the suit property, it is inclusive of 1/3rd right in the suit Well and the motor pump set, etc.

3.1. The plaintiff has been in enjoyment of the same from the date of his purchase. S.No.672 has been subsequently subdivided into 672/1 and 672/2. There is no other Well in the property other than the suit Well. During the subdivision, the Well was found to be in S.No.672/2, but when the plaintiff purchased the property, the survey number had been wrongly mentioned as 672/1 instead of 672/2 while describing his right over the Well.

3.2.The 1st defendant’s brother’s wife, who is the 2nd defendant herein the suit in OS.No.97/1985 for claiming partition, in which a preliminary decree has been passed. On 29.10.1998 the Advocate Commissioner visited the suit property pursuant to the preliminary decree and measured the same with the help of a surveyor. Only at that point of time, the plaintiff came to know that the Well is situated in S.No.672/2. Even in the suit filed by the 2nd respondent for partition in OS.No.497/1985 before the Dharapuram Munsif Court, it has been mentioned that the parties have got their respective shares in the Well. When the defendants 1 and 2 tried to sell their portion in S.No.672/1 and 672/2 to third parties, as though they had got their ½ share in the suit Well. Though the plaintiff has the right to enjoy the suit Well, he has been denied and hence he has filed this suit to declare his 1/3rd entitlement in the suit well and for a consequential permanent injunction.

4. The written statement of the defendants 2 and 3 is, in brief:

The sale in favour of the plaintiff on 25.11.1975 is not valid, as the 2nd defendant is not a party to the same. The plaintiff has got no right whatsoever in the suit well. It is false to state that there is no other well on the suit property. If there is any error in the descr