RAHMATHHANI Vs. SALMA NACHIYAL

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 11.12.2002 made in O.S.No.61 of 2000 on the file of the Additional District Court, Karaikal.

(2.) THE following are the averments in the plaint succinctly stated: 2.1. THE suit property in question originally belonged to Naina Maricar and he died leaving his two sons, viz., Samsudeen and Periyathambi and a daughter Seeniammal. After his death, the property in question devolved upon his children. THE said Periyathambi acquired the undivided share of Samsudeen and Seeniyammal in the suit property and became the absolute owner of the same. He had two wives, viz. Howla Ammal and Asia Ummal. THE said Howla Ammal had no issues. But, Asia Ummal had one son, namely, Kadhar Sulthan. THE plaintiffs are the daughters and son of the said Kadhar Sultan. THEy are the sole heirs of Khader Sulthan, who are all the absolute owners of the suit property after the death of their parents, grandmother and step-grand mother. 2. (ii) One Sara Ummal, wife of Allah Pitchai, filed a suit against Asia Ummal and her son Kadhar Sulthan for damages towards the value of trees belonging to her said to have been unlawfully cut and removed by Asia Ummal and the suit property was attached and brought to Court auction on 18.11.1952. One Sheik Abdul Kadhar is said to have purchased the suit property in the Court auction sale held on 18.11.1952. However, he did not take possession of the suit property in pursuance of the Court auction sale. THE said Howla Ammal, the step grandmother of the plaintiffs was not a party to the suit filed by Sara Ummal and she filed a petition under the French Procedure impleading Khader Sultan, Asia Ummal, Shaik Abdul Khader and Sara Ummal for declaration that the judgment for auction of the suit property is null and void since her share also has been sold without notice to her. During the pendency of the said proceedings, the said Sara Ummal died. Her children were impleaded as respondents 4 to 8 in those proceedings. THE Court below declared the judgment for auction of the suit property as null and void. Thus, the said Kadhar Sulthan and his mother Asia Ummal and his step mother Howla Ammal continued to be in possession of the suit property as owners thereon. In the meanwhile, the said Howla Ammal, Asia Ummal and Khader Sultan died and the plaintiffs, being the children of Khader Sultan, had been in possession of the suit property. 2. (iii) While so, one Mohamed Thageer alias Thaha is alleged to have purchased the suit property from the Court auction purchaser, who in turn is said to have sold the property in question to his wife Abitha Ummal, who in turn alleged to have gifted the property to her daughter, Rahmath Gani, the defendant herein. Since the Court auction sale dated 18.11.1982 has been declared as null and void, the above-said transactions that had happened whatsoever are also null and void. 2. (iv). THE defendant's mother Abitha Ummal trespassed into the suit property and therefore, the first plaintiff sent a lawyer's notice dated 28.01.1997 calling upon her to vacate and surrender the possession of the suit property. THE defendant herein has filed a suit in O.S.No.103 of 1997 on the file of the Principal District Municipal, Karaikal for permanent injunction against the plaintiffs and the same was decreed in favour of the defendant against which, the plaintiffs filed appeal in A.S.No.40 of 1998 on the file of the Additional District Judge, Pondicherry, Karaikal. However, the same was dismissed by the first appellate Court. THE decision in favour of the defendant was based on the admission of the first plaintiff in her notice dated 28.01.1997. THErefore, the present suit is laid for declaration of plaintiffs' title and recovery of possession of the suit property.

(3.) THE following points have arisen for consideration in this appeal. (i) Whether the respondents have got title over the suit property and whether they are entitled for recovery of possession of the same? (ii) Whether the appellant has got right over the property? Point No:1 & 2: THEse points are taken up together for consideration as they are interlinked with each other.