APPAIYA Vs. ANDIMUTHU

JUDGEMENT

(1.) The captioned appeal by special leave is directed against the judgment dtd. 17/10/2012 passed by the Madurai Bench of the Madras High Court in Second Appeal (MD) No. 802 of 2004 whereby and whereunder it reversed the concurrent judgments of the courts below decreeing the suit with regard to the title and possession of the entire suit property and confined the plaintiff's (appellant herein), entitlement to title and possession to 96 cents purchased under Ext. A5 sale deed. To be precise, as per the judgment impugned, the judgment dtd. 3/7/2001 in A.S.No.65/97 of the Sub-Court, Periyankulam confirming the judgment and decree dtd. 30/9/1997 in O.S.No.104/96 of the District Munsif- cum-Judicial Magistrate, Andipatti, was set aside to the aforesaid extent. The appellant herein was the plaintiff and the respondent Nos. 1 and 6 were respectively defendant Nos. 3 and 2, in the stated suit. Respondent Nos. 2 to 5 are the legal representatives of the deceased first defendant. The subject suit was filed seeking declaration that the entire suit property belonged to the plaintiff and for a consequential prayer for permanent injunction against the defendants.

(2.) The case of the appellant - (plaintiff) in nut-shell, relevant for the purpose of disposal of the appeal, is as follows :-

(3.) The first and the third defendants filed written statement in the suit mainly refuting the averment that the entire suit property belonged to Puliyankaladi and contending that it is incorrect and false and therefore, the plaintiff may be put to strict proof. The further case of the defendants was that out of the total extent of the property in Survey No.845/1, 75 cents belonged to Thavasi Andi Thevar, Veluthai Ammal and the first defendant, and son of Thavasi Andi Thevar, Veluthai Ammal and the first defendant executed a registered mortgage deed on 14/9/1961 in favour of Pomminayakkanpatti Palaniammal for Rs.1000.00. Further, as per sale deed No.2178/1974 of Andipatti Sub- Registry the third defendant purchased 30 cents in Survey No.845/1 and its well, 1/5th Kamalaivari channel and 1/2 of the Kamalaivari channel on the western side and since then she has been in possession and enjoyment of the said extent. In short, according to them suit was instituted with an ulterior intention to grab the entire property comprised the Survey No.845/1.