VISVANATHAN Vs. PARVATHI

JUDGEMENT

(1.) THE Second Appeal is filed by the defendant against the judgment and decree dated 2.7.2002 in A.S.No.76 of 1997 on the file of the Additional District Court, Fast Track Court, Kancheepuram, confirming the judgment and decree dated 30.4.1997 in O.S.No.1104 of 1989 on the file of the Additional District Munsif Court, Kancheepuram.

(2.) THE averments in the plaint are as follows: THE suit property originally belonged to one Nallandi Thanappa Gounder. It was succeeded by his son Nallandi Sappai @ Perumal Gounder and he became the absolute owner. Sappai @ Perumal Gounder executed a sale deed-cum-settlement dated 6.3.1918 in favour of his wife Mangaiammal and her two children Muniammal and Ponnusamy, in respect of 2-1/2 cents. THEy were in possession as absolute owners. Sappai @ Perumal Gounder died intestate leaving behind his wife Mangaiammal, son Ponnusamy and daughter Muniammal. THEy succeeded the remaining four cents and so, they are the absolute owners of the entire suit property. Mangaiammal also died intestate. Ponnusamy also died intestate without any marriage and so, Muniammal, the only heir, succeeded to the property. As the owner, she has been in exclusive possession and enjoyment for more than 50 years. So, she prescribed title by adverse possession. She put up two thatched huts and she has been now and then leasing to third parties, such as Vengaiammal and others. Her son G.Velu married the defendant's sister at Uthiramerur and he was residing therein and managing the property. THE plaintiff is the daughter of the said Muniammal and the said Muniammal, as the absolute owner of the suit property, while she was in a sound and disposing state of mind, voluntarily executed a Will, dated 26.10.1988, bequeathing the property in favour of her daughter, the plaintiff. It was duly executed and validly attested. Muniammal died on 21.5.1989. THEn, the plaintiff became the absolute owner of the property. THE plaintiff took Surveyor for sub-division and was preparing a plan for a pucca construction. THE defendant objected to the sub-division, stating that he had two more feet of vacant site further east of his building, which is unjustified and without any basis. So, the plaintiff issued a notice on 14.6.1989, but the defendant was evading to receive the same. Once again, she issued notice on 21.7.1989, which was also returned and hence, the plaintiff has come forward with the suit for declaration of title to the suit property and for permanent injunction against the defendant, his men or agents from in any way interfering with the possession of the plaintiff. THE plaintiff prayed for a decree.

(3.) AT the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "Whether the lower appellate Court was right in decreeing the suit on the ground that the appellant is a co-owner and he cannot raise a plea of adverse possession?" Substantial question of law: