NALLAPA GOUNDER Vs. PAZHANIMUTHU

JUDGEMENT

(1.) The subject matter of these two Appeals is the land under 4 different survey numbers to a total extent of 1 acre 25 cents at Omalur Taluk, Amani Periyeripatti Village. This property originally belongs to one Ontha Gounder and his wife Sevakkal. They both died intestate leaving behind their only son Palaniappan. The said Palaniappan had two sons and two daughters by name Palanimuthu, Periyapaiyan, Nallammal and Chinnathangam.

(2.) As per the plaint in O.S.No.63 of 2016, (originally filed before District Munsif Court, Omalur as O.S.No.6 of 2010, renumbered after transfer to the III Additional District Court, Salem) the said property is an ancestral property. Ontha Gounder, his wife Sevakkal and his son Palaniappan were enjoying the property till their lifetime. Thereafter, it devolved upon the two sons of Palaniappan namely Palanimuthu (first plaintiff) and Periyapaiyan. They both were in possession and enjoyment of the property. After the demise of Periyapaiyan, his three sons namely Selvam, Anbarasu and Vekatachalam (plaintiffs 2 to 4) inherited his share and enjoying the property jointly along with Palanimuthu. Thus, the plaintiffs are in absolute possession and enjoyment of the suit property and none else have right over it.

(3.) In respect of the suit property, on 14.06.1978, Palanimuthu, the first plaintiff and Periyapaiyan father of plaintiffs 2 to 4, entered into a sale agreement with one Onthappa Goundar for consideration of Rs.5,500.00 and received advance of Rs.2,000.00. The sale agreement was also registered. Onthappa Goundar was not able to pay the balance sale consideration and not ready and willing to perform the contract. He wanted the refund of advance money or topermit him to cultivate the land for 3 years period. Palanimuthu and Periyapaiyan permitted Onthappa Goundar to cultivate the land for a period of 3 years and same got renewed time to time since the first plaintiff and his brother Periyapaiyan were living away from Salem and not able to bestow their attention on the land. After the death of Periyapaiyan, his sons, who are the plaintiffs 2 to 4 became the joint owners of the property. On the demise of Onthappa Goundar, defendants 1 to 3, who are the sons and grandson of Onthappa Goundar were permitted to enjoy the suit properties on permissive basis. When the plaintiffs decided to dispose the property, they contacted the defendants 1 to 3 to vacate and handover the possession, they denied the plaintiffs title and refuse to vacate. The notice dtd. 12/9/2008 to vacate the suit land returned unserved since the defendants 1 to 3 refused to receive it. Later, the plaintiffs came to know that, based on patta obtained by fraud, three documents were executed and registered in respect of the suit properties to defraud the plaintiffs. They are:-