Advocates:
['M/S V RAGHAVACHARI', '', 'V SRIMATHI', 'R DIED', '', 'STEPS TAKEN', 'M/S P VALLIAPPAN', 'G RM PALANIAPPAN', 'FOR R', 'NOTICE SERVED', '', 'R MINOR REP BY', 'FATHER VELU UDAYAR']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24 – 01 – 2014

CORAM:

THE HON’BLE TMT. JUSTICE PUSHPA SATHYANARAYANA

S.A. No. 648 of 2006

and

M.P. No. 1 of 2006

Singaravel

.. Appellant

Vs.

1.

Murugesa Udayar (Died)

2.

Minor Sathiyamurthy

3.

Annapoorani

.. Respondents

(R3 brought on record as LR of the

deceased R1 vide order of Court

dated 16.9.2013 made in M.P. No. 1

of 2013)

Appeal under Section 100 of the Civil Procedure Code, against the

judgment and decree dated 25.7.2005 passed in A.S. No. 80 of 2003 on

the file of the Subordinate Judge at Kallakurichi confirming the

judgment and decree passed by the I Additional District Munsif Court,

Kallakurichi, in O.S. No. 526 of 1998 on 31.12.2002.

For Appellant

: Mr. V. Raghavachari

For RR 1 & 2

: No appearance

For R 3

: Mr. P. Valliappan

JUDGMENT

The appellant, plaintiff in O.S. No. 526 of 1998 on the file of

the I Additional District Munsif, Kallakurichi, who sued for

declaration of title to the suit property and for permanent

injunction restraining the defendants from interfering with the

peaceful possession and enjoyment of the suit property, has filed

this Second Appeal challenging the judgment and decree dated

25.7.2005 passed by the First Appellate Court in A.S. No.80 of 2003

wherein and by which the judgment and decree dated 31.12.2002 made in

O.S. No.526 of 1998 on the file of the I Additional District Munsif,

https://hcservices.ecourts.gov.in/hcservices/

Kallakurichi, was confirmed thereby dismissing the First Appeal at

the instance of the defendants.

2.

The plaintiff’s case was that the suit properties are the

common family properties also belonging to the first defendant, who

is none else than his father and though they have been in enjoyment

of the same, pursuant to a Panchayat, it was divided among themselves

through an oral partition. Accordingly, item Nos. 1 to 6, 8 and 9

of the suit properties were allotted to the plaintiff while item No.

7 of the property was allotted to the first defendant, who, according

to the plaintiff, on 14.8.1989, gave possession of the same to the

plaintiff through a Gift Settlement Deed. Since then the plaintiff

has been in absolute enjoyment and possession of the property by

paying Government tax. It is the further case of the plaintiff that

though the defendants have no right over the suit properties, due to

enmity, they have denied his right by creating false documents and

obstructed his peaceful enjoyment since 01.6.1998. Hence, the suit.

3.

The defence of the defendants was that the plaintiff does

not have complete enjoyment and possession of the suit properties and

that the same were enjoyed by the plaintiff and the defendants

jointly. According to the defendants, no settlement was effected

in respect of the 7^th item of the property, which is a well and that

in order to obtain service connection for the well situated in 7^th

item, settlement was meant to be effected in respect of the well.

It is further stated by the defendants that the plaintiff has wrongly

included the entire property and that due to family compulsion, item

Nos. 2 to 5 were sold on 01.4.1998 to the second defendant which sale

will bind the plaintiff. On these grounds, the defendants

sought for dismissal of the suit.

4.

Before the trial Court, on the above pleadings, the parties

took oral and documentary evidence. The plaintiff examined himself

and marked Exs. A.1 to A.8. On the side of the respondents /

defendants, no witness was examined and no document was marked.

5.

Trial Court, after evaluating entire evidence, finding that

the plaintiff has not proved possession and title in respect of item

Nos. 1 to 6, 8 and 9 of the suit properties, held that he is not

entitled to any decree of declaration and dismissed the suit. In

respect of item No. 7 of the suit schedule, the trial Court decreed

the suit holding that the plaintiff has proved hi