A MURUGESAN Vs. TMT KUPPAMMAL

JUDGEMENT

(1.) THE details as regards the suits, appeals and the second appeals therefrom are given in a tabular form below: xxxxxxx

(2.) THE plaintiff in O.S.No.3551 of 1983 on the file of the 13th Assistant City Civil Judge, Madras is the defendant in O.S.No.6351 of 1984 is the defendant in O.S.No.3551 of 1983. THE 1st plaintiff in O.S.No.6351 of 1984 Muthukrishnan who was not a party in O.S.No.3551 of 1982 and who was the first plaintiff in all the other suits died pending the suits and his legal representatives were brought on record as plaintiffs 3 to 8 in the said suits. Except in S.A.No.950 of 1993, where Murugesan alone is the appellant, in the other second appeals Murugesan and the legal representatives of Muthukrishnan are the appellants.

(3.) THE suit was resisted by Murugesan on the following averments: Murugesan and his brother Muthukrishnan purchased the suit property along with other portions under a duly registered deed of sale dated 5.7.1955 and they were put in possession of the property purchased on 5.7.1955 itself. THEy continued in possession and enjoyment along with other portions eversince that date. THEy also got the patta transferred in their names. THEy had been paying out rents, Urban Land Tax and Corporation Taxes eversince the date of their purchase in 1955. THE Corporation Assessment also stood in the name of Murugesan. Murugesan had been in possession and enjoyment of the suit property along with other portions as absolute owner without any interference from anybody. Kuppammal had not derived any right, title or interest from Brahamalambigai Ammal as Brahamalambigai Ammal had sold away the property in 1955 itself. Kuppammal knew about these facts and it was in those circumstances she had made her mother Kannammal to execute a deed of settlement in her favour hoping that it would create a title in her favour. As Kannammal herself had no title or interest in the property the settlement deed would not create any right in favour of Kuppammal. THE document had been cooked up to suit her convenience. She committed trespass just prior to the filing of the suit and when she was asked to remove the trespass she had filed the suit in order to give a colour of reality. In fact, she pleaded for time before the Panchayathars to remove the trespass and taking advantage of the indulgence given to her she had filed the suit. Brahamalambigai Ammal having sold away the property on 5.7.1955, she had no right to file any suit in 1957. THE documents filed by Kuppammal also did not relate to the suit property. Photostat copy of the decree filed by Kuppammal in respect of O.S.No.677 of 1957 did not contain any schedule to correlate the same to the suit property. As Brahamalambigai Ammal owned vast extent of land it was the bounden duty of Kuppammal to establish to the satisfaction of the court that the alleged documents in respect of the suit properties created title in her favour. THE original owner borrowed a sum of Rs.100 from Narayanaswamy Naicker and Vellai Naicker and executed a letter in their favour and subsequently paid the amount due to them. She never executed any deed of usufrusturary mortgage in favour of Narayanaswamy Naicker and Rajambal. Even otherwise Kuppammal's mother Kannammal alone had no exclusive title to the suit properties to settle the same on her daughter. THE original owner might have filed the suit by mistake and when she realised that she had already sold the suit properties she must have allowed the suit to be dismissed for default. As Murugesan had continued to be in possession of the suit properties along with other appellants from 1955 onwards, there was no question of Kuppammal prescribing title by adverse possession. Kuppammal never asserted her title nor did she deal with the properties and so possession if any way only an innocent possession which would not create any title by adverse possession in her favour or her predecessors in interest. THE deed of settlement dated 11.3.1982 was invalid in law as the settlor herself had no title to the suit properties. THE present suit against Murugesan alone without impleading the other co-owner was bad in law. As Murugesan had put up wall in his own land, it was not liable to be removed as claimed by Kuppammal.