POONU ALIAS KONDAPPA NAICKER Vs. MARAMMAL

JUDGEMENT

(1.) THE unsuccessful defendants in both the Courts below are the appellants.

(2.) THE case in brief is as follows: THE plaintiffs filed a suit for declaration and consequential permanent injunction in respect of the suit property. THE suit property belong to the plaintiffs, which was allotted to the 2nd plaintiff's grandfather Nallusamy in the family partition, Nallusamy Naicker had 3 brothers namely, Ramaswamy Naicker, Venkata Naicker and Chinnu Naicker. All the 4 brothers have divided among themselves the joint family properties into 4 shares nearly 40 years ago and each were in separate possession and enjoyment of the respective shares. THE plaintiffs are the heirs of Nallusamy Naicker. THE 2nd plaintiff is the son of the 1st plaintiff. THE 2nd defendant is the son of the 1st defendant and they are the heirs of Ramasamy Naicker. Venkata Naicker had alienated his share long ago. Chinnu Naicker has got a son by name Vellappa Naicker who is alive. THE total extent of S.F.No.383/1 in Vaiyampatti village is 28.56 acres. In this, one Subba Naicker is having ancestral right with regard to an extent of 5.42 acres on the eastern portion. THE remaining extent of 23.14 acres belonged to the joint family of Nallusamy and his 3 brothers. Further, the joint family owned an extent of 5.14 acres in S.F.No.371/2 which is on the west of S.F.No.383/1. In the family partition, 23.14 acres in S.F.No.383/1 and 5.14 acres in S.F.No.371/2 were taken as one lot and was allotted by metes and bounds to the share of Nallusamy Naicker and his brother Ramasamy Naicker. THE other two sharers were allotted some property. Nallusamy Naicker was allotted an extent of 13.75 acres in S.F.No.383/1 which is on the west of Subba Naicker's portion, whereas Ramasamy Naicker was allotted 9.39 acres in S.F.No.383/1 which is on the west of Nallusamy Naicker's portion as well as the entire extent of 5.14 acres in S.F.No.371/2. Thus, the 2nd plaintiffs" grandfather was allotted 13.75 acres and the 1st defendant's father was allotted 14.49 acres in both the survey numbers. THE property allotted to the plaintiffs" branch is marked as A, B, C, D, E, F in the plaint plan. THEre is ridge marked as A, F dividing the property of the plaintiffs and the defendants. THE plaintiffs are the legal heirs of Nallusamy Naicker enjoying the suit property. THE defendants are enjoying the land west of A, F diving ridge as the legal heirs of Ramasamy Naicker and the defendants have alienated the land in S.F. 371/2 measuring 5.14 acres. THE defendants have no manner in right in the suit property. THE plaintiffs and their predecessors- in-interest are in possession and enjoyment and they have also prescribed that title. THE defendants attempted to trespass into the property and hence the suit. THEy claimed that they have got 2.25 acres on the west of the plaintiffs in the plaint plan in the family partition. Defendants 1 and 2 filed separate written statements admitting the total extent as 28.56 acres in S.F.No.383/1. It is not correct to state that Subba Naicker had a right over 5.42 acres, but the extent was only 4.98 acres. THE remaining extent alone was divided between Nallusamy and his brothers some 40 years back. However, the husband of the 1st plaintiff has got only 11.58 acres in the partition and not 13.75 acres as claimed by them. On the east of 11.58 acres, there is an extent of 2.25 acres belonging to the defendants. THEre is a dividing ridge between the property of the plaintiffs and the defendants. Even in the settlement enquiry, the plaintiffs were granted patta only for an extent of 11.58 acres, but subsequently they managed to get patta for 13.75 acres. THE defendants raised objection and after reconsideration, orders were passed on 1.12.1980 granting patta to the plaintiffs for 11.58 acres only. THE plaintiffs have not preferred any appeal against the proceedings under Survey and Boundaries Act and, as such, the present suit is not maintainable under law. Now, the defendants are in possession and enjoyment of 2.25 acres for the last 40 years and they have also prescribed the title. THE defendants also filed additional written statement that the sub-divisions 383/1-A-1 and 383/1-A-3 have been effected even before the filing of the suit. THE plaintiffs as well aware of the same. THE trial Court framed number of issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-11 were marked. THE reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. THE trial Court decreed the suit and aggrieved against this, the defendants preferred A.S.No.168 of 1997 on the file of I Additional District Court, Trichy and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the defendants have come forward with the present second appeal.

(3.) LEARNED counsel for the appellants contended that the disputed property is only 2.17 acres shown as C, D, E, F under Ex.C-2 and this property is in their possession and enjoyment more than the statutory period and they have also prescribed the title. The further stated that by mistake the plaintiffs originally got patta for 13.75 acres and on coming to know of the same, the defendants gave objections and after proper enquiry only, it was modified and granted patta to 11.58 acres only. When the resurvey has become final and the same was not challenged by the respondents/ plaintiffs in accordance with law, it is binding upon them and they are not entitled to claim the entire extent of 13.75 acres. There are lot of corrections in Ex.A-5 and hence, this cannot be relied upon to give the relief in favour of the respondents. On the other hand, under Ex.B-11 there are no corrections and the same has to be necessarily accepted and acted upon. Admittedly, the respondents have not filed any suit for recovery of possession, but the suit was filed only for declaration and injunction.