AROGYA SOPHINE Vs. AROGYA SAMI

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. The subject matter of the suit is two items of property morefully described in the 'B' schedule of the plaint. The suit initially filed for Declaration and Permanent Injunction. Later, the relief was amended for Declaration, Recovery of Possession and Mense Profits. The Trial Court decreed the suit. On appeal by the first defendant, the same was reversed. Hence, the Second Appeal is directed against the judgment and decree of the first appellate Court, which has set aside the judgement and decree passed by the Trial Court and dismissed the suit.

(2.) The suit laid by the appellant/plaintiff on the premise that she is the daughter of one Chinnappan. Her father and the first defendant Arokiyasami are sons of late Antonymuthu. She purchased the 'A' schedule property from Anthonymuthu on 19/11/2004 and enjoying the same. The 'B' schedule property is the pathway and access to the 'A' schedule property. Arokiyasami (first defendant) and his wife Fathima @ Fathi (second defendant ) objected her using the pathway in the 'B' schedule property. Hence, she purchased the 'B' schedule property from Anthonymuthu on 25/02/2005 to have access to 'A' schedule property. Knowing this, to cheat her, Arokiyasami illegally got a sale deed in his favour in respect of the 'B' schedule property from Anthonymuthu on 15/03/2005. The defendants on 15/09/2005 forcible trespassed into the 'B' schedule property and had cultivated paddy. Hence, the relief of declaration of title in respect of 'B' schedule property and recovery of possession and mense profit sought.

(3.) The respondents/defendants, who are husband and wife, contested the suit. They contended that, the suit property owned by Anthonymuthu. Apart from the father of the plaintiff Chinnappan and the first defendant Arokiyasami, there is one more son to Antonymuthu by name Susai Kulanthai and two daughters by name Lourthmari and Gnanambal. The said Anthonymuthu is also alive. The properties were purchased in the name of the father out of the earnings of his three sons. The property was jointly enjoyed by the family members till misunderstanding between the brothers cropped. Hence, in the year 1983 in the presence of village elders the family properties were divided. Anthonymuthu did not seek share and the property was divided into three portions. Each of his sons were given one portion. The said family arrangement was reduced into writing and signed by the father, his three sons and witnesses. The document in respect of their respective share was also given to the respective sharers. As per the arrangement, the first item property in the 'B' schedule bearing S.No.78/4B6 to an extent of 0.50 cents and the second item property in the 'B' schedule bearing S.No.77/10 to an extent of 0.30 cents, out of 1.05 acres, was allotted to the first defendant. He has invested nearly one lakh rupees to dig borewell and obtained electricity connection in the first item property in the 'B' schedule. In the second item of the 'B' schedule, he has laid cement pipe to carry water for irrigation from the borewell in the first item. He is in possession and enjoyment of the 'B' schedule property for more than 20 years adverse to others. Thereby, he has also perfected the title over the 'B' schedule property by adverse possession. The 'B' schedule property was never a pathway for 'A' schedule property. It is an agricultural land under the first defendant cultivation. After the partition of the family property on 16/05/1983, the Anthonymuthu had no right in the 'B' schedule property. The father of the plaintiff had fraudulently and cunningly mislead Anthonymuthu and had got the sale deed registered on 25/02/2005 without any consideration. Hence, the plaintiff is not entitled for the relief prayed.