VENKATACHALA MOOPAR AND OTHERS Vs. BALASUBRAMANIAN

JUDGEMENT

(1.) This Second Appeal has been filed by the defendant as appellant, against the judgment and decree dated 12-3-1989 and made in A.S. No. 90 of 1986, on the file of the Sub-Court, Vridachalam, confirming the judgment and decree dated 18-9-1986 in O.S. No. 832 of 1980, on the file of the Court of District Munisif, Kallakurichi.

(2.) The facts that are necessary for the disposal of this Second Appeal areas follows : The property described in plaint A- schedule was given by Munichiammal by means of a gift deed dated 21-2-1905 to her daughter Amirthammal. Amirthammal accepted the gift and was in possession and enjoyment of the said property. She died about 30 years ago leaving her three daughters namely, Mulaviammal and Pappanunal and Kuppammai as her legal heirs to the said suit property. The said three daughters were in possession and enjoyment of the said suit property. Thereafter, Mulaviammal and Papammal sold their ⅔rd share in the '4' Schedule property to R.P. Shanmuga Mudaliar by means of a Registered Sale deed dated 26-8-1963 for Rs. 600.00. There was a thatched shed in dilapidated condition at the time of purchase and two years later, the above said thatched shed fell down. The suit property became a vacant site. Shanmuga Mudaliar was paying the house tax to the property purchased by him. There was an oral partition in the year 1964 between him and the defendant, who became entitled to ⅓rd share in 'A' Schedule property. In that artition, the southern ⅔rd share in 'A' schedule property was allotted to Shanmug Mudaliar and the northern ⅓rd share was allotted to the share of the defendant. Shanmuga Mudaliar, who enjoyed the southern ⅔rd share, which is described as 'B' schedule property in the plaint, sold the said property to the plaintiff by means of a registered sale deed dated 30-6-1980 for Rs. 400.00 and put the plaint in possession of the said property. The plaintiff has been in possession and enjoyment of the plaint 'B' schedule property in his own, right from the date of purchase. The defendant, who was not successful in purchasing the ⅔rd share from Shanmuga Mudaliar, is attempting to interfere with the possession and enjoyment of the 'B' schedule property by the plaintiff. It is in the said circumstances, the plaintiff, who is the respondent herein, has come forward with a suit for declaration of his title and for permanent injunction restraining the defendant and his men from interfering with his lawful possession and enjoyment. If the oral partition pleaded by the plaintiff is not agreeable, then the plaintiff has come forward with alternative relief of partition of the suit, property into three equal shares and put the plaintiff in possession of two such shares.

(3.) The defendants who is the appellant before this Court has resisted the claim made by the plaintiff, who is the respondent herein, on the following grounds : The suit property did not originally belong to one Amirthammal and the alleged gift deed dated 21-2-1905 is not true and valid and binding on this appellant. Amirthammal never accepted the gift deed and was never in possession and enjoyment of the plaint 'A' schedule property. The plaint 'A' schedule property belonged to Narayana Mudaliar and his ancestors and the said property was inherited by Kuppammal and her son Mani Mudaliar. Mulaviammal and Pappammal, who are the sisters of Kuppammal, had no manner of title to the property described in the plaint 'A' schedule property. Mani Mudaliar executed a usufructuary mortgage deed with regard to the plaint 'A' Schedule property in favour of one Ammaniammal dated 02-8-1962 and thereafter Kuppammal and her son Ammaniammal sold the plaint 'A' schedule property by means of a registered sale deed dated 26-8-1963 to the defendant. The defendant, who has discharged the debt, due under the mortgage deed referred to above, has been in possession and enjoyment of the plaint 'A' schedule property. Shanmuga Mudaliar did not derive title to ⅔rd share in the suit property described in 'A' schedule and he was also not in possession of the same. Shanmuga Mudaliar did not pay house tax to the said property and was also not using the said property to store hay and for tying cattle. The appellant is not entitled only to northern ⅓rd share as alleged by the plaintiff. The defendant and his predecessor in title have prescribed title to the plaint 'A' schedule property by adverse possession by enjoying the said property openly and continuously for over 30 years. It is on this ground the appellant, as defendant, has sought for dismissal of the suit.