S APPADURAI NADAR Vs. A CHOCKALINGA NADAR

JUDGEMENT

(1.) This appeal is directed against an order passed by learned Single Judge of the High Court of Madras in Second Appeal No. 712 of 1987 on 1.4.1999 whereby learned Single Judge of the High Court of Madras has reversed the concurrent finding of fact by the two courts below and set aside both the judgments and granted a decree in a suit of the plaintiffs.

(2.) Brief facts giving rise to this appeal are that the plaintiffs filed a suit for permanent injunction, restraining the defendants from interfering with the plaintiffs possession and enjoyment of the suit property. Item No. 1 of the suit property came in share of the 1st plaintiff while the 2nd item of the suit property in favour of the 2nd plaintiff in a partition that took place in 1965. It was alleged that ever since the plaintiffs were in possession and enjoyment of their lands and they had been paying the land revenue for the same. The 3rd defendant is the father of both the plaintiffs. The 1st plaintiff was employed in Madura Garments Mill at Vikiramsainghapuram from the year 1941 and the 2nd plaintiff was employed from the year 1944. Both the plaintiffs are the earning members of the family. It is alleged that out of the said earnings, certain joint family properties were purchased and the 3rd defendant being the head of the family i.e. father and head of the family, both the properties i.e. item Nos.1 and 2 were purchased out of this common pool on 17.5.1949 in his name. These properties were joint family properties till 1965. It was further alleged that the said item Nos.1 and 2 properties were divided between the plaintiffs and the defendants in the year 1965. Defendant No. 3 was maintained by the plaintiffs till his life time. It was alleged that the 1st plaintiff had been paying the land revenue for item No. 1 of the suit property while 2nd plaintiff was paying the land revenue for the item No. 2 of the suit property. It was alleged that in the sale deed executed by the 1st plaintiff and the 3rd defendant in favour of one Dhiraviya Nadar on 9.9.1981, the 3rd defendant i.e. the father of plaintiffs had admitted the partition and character of the property. Apart from this, both the plaintiffs claimed properties by way of adverse possession. It was alleged that at the instigation of the mother of defendant Nos.1 & 2, the 3rd defendant, the defendant Nos.1 & 2 were attempting to interfere with the possession of the plaintiffs. Hence, the present suit was filed. It may be relevant to mention here some genealogy. Plaintiff Nos.1 & 2 are the sons of Defendant No. 3 and Defendant Nos.1 & 2 are the grandsons of defendant No. 3, being the sons of his daughter i.e. plaintiff Nos.1 & 2 are the sons of Defendant No. 3 and Defendant Nos.1 & 2 are the sons of sister of Plaintiff Nos.1 & 2. Defendant No. 3 has sold the item Nos.1 & 2 of the suit properties to Defendant Nos.1 & 2, the grandsons. The plea of defendant Nos.1 and 2 was that the plaintiffs had no right over the suit property, defendant No. 3 purchased both the properties out of his own funds and he was the sole owner of both the properties and he has sold these properties to defendant Nos. 1 &2 for valuable consideration on 18.2.1982 and ever since the defendant Nos. 1 & 2 are in possession and enjoyment of the same. They have denied the so called partition as alleged by the plaintiffs in the year 1965. They also denied the plaintiffs have acquired title to the suit properties by way of adverse possession. It was also alleged that since the defendant No. 3 refused to sell the properties to the plaintiffs, the plaintiffs have removed certain documents from the house of defendant No. 3 and complaint to this effect was also filed.

(3.) Defendant No. 3 also filed a written statement, though he did not appear in the witness box and in that written statement he has denied the factum of partition in the year 1965 and he has also asserted that the properties were never purchased as joint family properties. The properties were purchased by him out of his own funds and he was in possession of the suit properties in his own right and he sold the same in favour of defendant Nos.1 and 2 for valuable consideration and put them in possession. It was also alleged that in the sale deed dated 9.9.1981, the plaintiff No. 1 has made a false recital. It is alleged that he came to know about it only after the filing of the suit. It is further alleged that since he declined to sell his land to one Rameshwaram, the plaintiffs with the help of one Sub- Inspector of Police, Alangulam P.S. trespassed into his house and removed certain valuable records. The defendant No. 3 made a complaint to this effect on 18.2.1982 and the same is pending.