- (1.) THE Appellant/1st Respondent/Plaintiff has focused the present Second Appeal as against the Judgment and Decree dated 26.06.1996 in A.S.No.215 of 1994 passed by the Learned District Judge, (Villupuram Ramasamy Padayachi District), Villupuram, in reversing the Judgment and Decree dated 23.12.1993 in O.S.No.184 of 1987 passed by the Learned District Munsif, Tirukoilur.
(2.) THE Plaint Facts (filed by the Appellant/1st Respondent /Plaintiff in O.S.No.184 of 1987): THE 1st Respondent/1st Defendant and one Arunachala Gounder and Durai Gounder are the sons of their father Narayanasamy Gounder born through first wife Thanam Ammal. THE Appellant/Plaintiff, Kannusamy Gounder and Annamalai Gounder are the sons of the said Narayanasamy Gounder born through his second wife Selli Ammal. THE 1st Respondent/1st Defendant, Arunachala Gounder and Durai Gounder 40 years ago have divided their half share of properties from the family and the said three of them have been in enjoyment and possession of the said properties. The Plaint schedule properties have been in enjoyment of the Appellant/Plaintiff, his brother Kannusamy and Annamalai as joint family and 25 years ago. They have orally divided the properties in the presence of Panchayatars by putting up the fences. In the said Partition, the suit property and other items of properties have been allotted to the share of the Appellant/Plaintiff. The Appellant/Plaintiff's brothers Kannusamy and Annamalai have been in enjoyment of their allotted properties separately by means of possession of the same. Ever since the Partition, the Appellant/Plaintiff has been in possession of the suit and other properties and also in payment of Kists to the Government. The Appellant/Plaintiff has been issued with Patta No.428 under the UDR Scheme by the Special Tasildhar in respect of the suit and other properties. The Appellant/Plaintiff is paying the kists and enjoying the properties. There is an enmity between the Appellant/Plaintiff and the Respondents/Defendants. During October 1982, in the suit property, the Appellant/Plaintiff has planted nilgiri saplings and has protected the same. The 2 to 4 Defendants are the sons of the 1st Defendant. On 09.11.1986, with a view to cause loss and damage to the Appellant/Plaintiff, the Defendants have trespassed into the suit property and destroyed the nilgiri saplings planted by the Appellant/Plaintiff. The actions of the Respondents/Defendants are unlawful. The value of the damaged nilgiri saplings amounts to Rs.3,000/-. Though a complaint has been lodged with the Arakandanallur Police Station by the Appellant/Plaintiff against the Respondents/Defendants, it has not yielded the desired results. The Respondents/Defendants have joined in unison and have ploughed the suit property and has taken over the possession. When the Appellant/Plaintiff's son Dhandapani obstructed the Respondents/ Defendants' unlawful acts, they beat him with sticks and stones and caused injury to him. Hence, the Appellant/Plaintiff has filed the suit seeking the relief of declaration in respect of the suit property and also, sought recovery of possession of the suit property from the Respondents/Defendants through Court. Also, the Appellant/Plaintiff has sought a relief of Rs.3,000/- towards the damages caused for destruction of nilgiri saplings. Furthermore, the Appellant/Plaintiff has sought the relief of mesne profits as per Order 20 Rule 12 of the Civil Procedure Code.
(3.) THE Written Statement averments of the 1st Respondent/1st Defendant (adopted by the 3rd and 4th Respondents/3rd and 4th Defendants: It is true that the 1st Respondent/1st Defendant Arunachala Gounder, Durai Gounder are born to Narayanasamy Gounder through his wife Thanam Ammal. THE Appellant/Plaintiff, Kannusamy and Annamalai are born to Narayanasamy Gounder and Selli Ammal. THE 1st Respondent/1st Defendant and his brothers Arunachalam and Durai 40 years ago have divided the half share of the properties from their family and has taken possession and also in enjoyment of the same. THE other averments are that the suit property have been in enjoyment of the Appellant/Plaintiff, his brothers Kannusamy and Annamalai Gounder and further, 25 years ago, a Partition has been taken place by means of putting up of boundaries etc. are all false and they have to be proved by the Appellant/Plaintiff. The Ayan Nanja Re-survey No.58/2, 1 acre and 44 cents of land in Oottampattu Village and 0.66 cents of land belonged to Andi Gounder and they have been in his enjoyment. Narayanasamy Gounder (Appellant/1st Defendant's father), Thulasi Gounder and Veerasamy Gounder are the sons of Andi Gounder. All the properties belonging to Andi Gounder in the presence of Panchayatars have been divided between his three sons by metes and bounds before 50 years. In Ayan Nanja Re-survey No.58/2, 1 acre and 44 cents, Narayanasamy has been allotted 0.45 cents of land, Thulasi Gounder has been allotted 0.48 cents of land with specified boundaries and Veerasamy has been allotted 0.51 cents with specified boundaries.;