DURAIRAJ Vs. SRI KALIAMMAN KOIL VELIPALAYAM

JUDGEMENT

(1.) THE defendant in O.S.No.26 of 2006 on the file of the Subordinate Court, Nagapattinam, is the appellant.

(2.) THE respondents/ plaintiffs filed the suit for eviction stating that the suit property belongs to the Temple and they are the Trustees of the Temple and originally the property was leased out to one Santhanam and after his death one Pappathiammal who was living with Santhanam continued to enjoy the property and was paying the rent to the respondents' Temple and thereafter the respondents' Temple filed the suit in O.S.No.253 of 1980 on the file of the District Munsif Court, Nagapattinam against Pappathiammal for eviction and that suit was dismissed and the appeal filed by the respondents' Temple in A.S.No.127 of 1981 was allowed and Pappathiammal filed S.A.No.1040 of 1982 and during the pendency of the Second Appeal she died on 16.6.1986 the appellant claimed to be a legattee under a Will alleged to have been executed by Pappathiammal took steps to implead himself as Legal Representative of the deceased Pappathiammal . But he was not allowed to get himself implead as Legal Representative and Second Appeal was dismissed on 10.3.1993 and thereafter the respondents' Temple/ plaintiffs filed E.P.No.23 of 1996 for delivery and delivery was ordered on 30.8.1996 and the appellant filed E.A.No.222 of 1996 under Section 47 of CPC stating that the decree cannot be executed against him and E.A.No.222 of 1996 filed by the appellant was dismissed on 7.10.1996 and the appellant filed C.R.P.No.3295 of 1997 against that order and that was also dismissed by this Court on 26.11.1997. THEreafter, he instigated one Anthonyammal claiming to be the daughter of Santhanam and she filed the suit in O.S.No.2 of 1997 for injunction and that was also dismissed on 9.7.1997 confirmed the appeal in A.S.No.336 of 1997. THEreafter, delivery was effected in E.P.No.23 of 1996 in O.S.No.253 of 1980 and delivery was taken. Taking advantage of the exparte injunction obtained by Anthonyammal in S.A.No.1437 of 1998 filed against the decree in O.S.No.2 of 1997 confirmed in A.S.No.336 of 1997 the said Anthonyammal trespassed into the property and by order dated 9.12.1998 this Court vacated the injunction granted in C.M.P.No.13604 of 1998 in S.A.No.1437 of 1998. THE appellant also filed O.S.NO.75 of 1998 for permanent injunction and trespassed into the suit property on 29.9.1998. THErefore, the present suit was filed for delivery of possession.

(3.) THE first appellate Court reversed the finding of the trial Court holding that in E.P.No.23 of 1996 the delivery was ordered and the appellant filed E.A.No.222 of 1996 under Section 47 of CPC resisting the delivery and his application was dismissed and confirmed in CRP.No.3295 of 1997 and therefore the respondents' Temple/ plaintiffs proved their title and after getting delivery the appellant trespassed into the property and now claimed that he is entitled to remain in possession under the settlement deed executed by Pappathiammal and the appellant being a party in the application under Section 47 of CPC filed by him in E.A.No.222 of 1996 in E.P.No.23 of 1996 in O.S.NO.253 of 1980 he is bound by the decree passed in O.S.No 253 of 1980 and he also originally claimed as a Legal Representative of Pappathiammal and relied upon the Judgement reported in 2008 (1) MLJ, Madras page 349, held that he is bound by the decree passed in O.S.No.253 of 1980 and allowed the appeal. Hence, the Second Appeal.