MUNUSAMI GRAMANI Vs. ROHAIYABEEBI

JUDGEMENT

(1.) This Second appeal arises against the decree and judgment passed in A.S.No.15 of 1984 dated 21.10.2002 on the file of Principal Subordinate Judge, Tindivanam reversing the judgment and decree dated 07.01.1984 made in O.S.No.2328 of 1979 on the file of District Munsif, Tindivanam.

(2.) The averments made in the plaint are as follows: The suit property and other properties are originally belonged to the family of one Ramabushnam Gramani. There was a civil dispute between Lakshminatha Gramani and Ramabushnam Gramani in respect of the suit property and other properties in S.A.No.752 of 1966 on the file of High Court, Madras. A compromise was effected and in terms of joint endorsement, a compromise decree was passed on 01.02.1971. In the said compromise decree, in the suit S.No.R.S.208/3 0.10 cents including the suit property was given to Ramabushnam Gramani and he was in possession and enjoyment of 10 cents allotted to him. On 07.09.1978, out of 0.10 cents, he sold the suit property in favour of one Abdul Khadar Sahib and delivered possession of the suit property. The remaining portion in the 0.10 cents was sold by Ramabushnam in favour of one Subramanian, Mohamed Ismail, Abdul Khadar and Dananjayan. On 31.05.1979, the plaintiff purchased the suit property from Abdul Khadar for Rs.1000/- and from the date of sale she was and is in possession and enjoyment of the suit property. He also acquired title by adverse possession. The defendant has no right over the property. The suit property is a patta land. The defendant has a house near the suit property and third party purchased a site belonging to the defendant and they are enemical towards the plaintiff. At their instigation, the defendant attempted to interfere with the plaintiff's possession of the suit property. Hence, the plaintiff has come forward with the suit for declaration of title to the suit property and also for injunction restraining the defendant not to trespass into the suit property and prayed for a decree.

(3.) The gist and essence of written statement filed by the defendant are as follows:- The suit property is originally belonged to ancestors of Ramabushnam Gramani. There was a compromise in S.A.No.752 of 1966. In the said compromise decree, Lakshminatha Gramani and Ramabushnam Gramani colluded together and 0.10 cents was allotted to Ramabushnam Gramani in the suit survey number among certain other properties. The suit property is a pathway in which nobody can claim any right. The pathway was in existence for more than 200 years. It was used by the residents of the house situated in the suit survey No.(208/3) and also S.No.183/1. It is a Gramanatham. The suit property was used as a link road between Pondy Marakkanam Road and Pazhayapattianam Pattai. On both sides of the Pattai, there are houses belonging to different people. The plaintiff and her predecessor in title Abdul Khadar and Ramabushnam Gramani are well aware of the fact of the existence of the common lane in the suit property.In a partition deed dated 20.01.1882, the existence of the common lane in the suit property was mentioned. Either the plaintiff or her predecessor in title namely Abdhul Kadher and Ramabushnam Gramani had no right, title or interest in the suit property. The said Ramabushnam Gramani sold all the 0.10 cents in the suit survey number to one Subramanian,Mohamed Ismail and Dananjayan. So Ramabushnam Gramani has no title or right over the suit property which is used as a common lane. Since the plaintiff under the guise of sale deed from Abdul Khadar obstructing this defendant and other residents of the area from using the lane claiming false title over the suit property, the defendant had filed a petition under section 147 Cr.P.C before the learned Executive First class Magistrate at Tindivanam in M.C.No.39 of 1979 which is pending enquiry. The plaintiff who knows fully well of the existence of the common lane, she has come forward with the vexatious suit. The sale deed in favour of the plaintiff executed by Abdul Kadher is only a sham and nominal document. The ancestors of Ramabushnam Gramani and also the defendants were using the pathway for more than 200 years uninterruptedly and openly. This defendant had also perfected easmentary right of usage by adverse possession also. The suit is bad for non-joinder of necessary parties as the other residents of the suit survey number are also necessary parties to the suit. Hence, he prayed for the dismissal of the suit.