V A AMIAPPA NAINAR Vs. N ANNAMALAI CHETTIAR

JUDGEMENT

(1.) THE above two second appeals are referred by Ismail J. , in view of the conflicting decisions of this court on the admissibility of boundary recitals in documents not inter partes. In order to appreciate the reference. it is necessary to set out briefly the facts.

(2.) DEFENDANTS 1 and 2 are appellants in S. A. 1157 of 1963 and the 5th defendant is the appellant in S. A. 19 of 1964. Both second appeals arise out of O. S. 530 of 1960 on the file of the District Munsif Court. Tiruvannamalai. The plaintiff instituted the suit for declaration of his title to the suit site in the village of kalasapakkam and for possession. The plaintiff's case is that the suite site originally belonged to the Periathambi Chetti, the father-in-law of the 3rd defendant Muniammal and the great grandfather of the 4th defendant minor Kasi chetti. The said Periathambi was in possession and enjoyment of the site by installing a country oil mill thereon. While so certain enemies of his complained to the Government that he had encroached on the Government land, and that he should be evicted. Periathambi contended that the property in question had been in his possession for over 30 years, and accepting this contention, the Government issued an order dated 24-4-1880 recognising his rights. Periathambi died in or about 1910 leaving his son Annamalai. Annamalai was in possession and enjoyment of the suit site till his death, Thereafter, his widow, the 3rd defendant Muniammal and his son Mannu Chetti were in possession and enjoyment of the suit site. They mortgaged the suit site as well as their house to one Rathinavelu chetti on 29-5-1946 and subsequently sold the same to the plaintiff on 26-111946. The plaintiff's case is that, ever since his purchase, he had been in possession of the suit site and the house, and that in or about March 1952, defendants 1 and 2 trespassed into the suit site and constructed some walls thereon. The plaintiff filed applications before the Tahsildar of Polur and the revenue Divisional Officer, Tiruvannamalai, complaining about the trespass committed by defendants 1 and 2, and the Tahsildar of Polur directed the plaintiff to establish his righted in a civil court. Thereupon the plaintiff filed O. S. 501 of 1954. The 5th defendant, the State of Madras, took up the plea of want of notice under Section 80, Civil P. C. and the suit dismissed on the preliminary point. Ultimately the order of the trial court was upheld by this court in S. A. 305 of 1957. The present suit has been filed, after the issue of the requisite notice to the government, for declaration of his title to the suit site and for possession.

(3.) DEFENDANTS 1 and 2 contended that the suit site was a Natham and was not assigned to any one. They denied the continuous possession and enjoyment of the suit site by Periathambi and his descendants. They also contended that the order dated 24-4-1880 relied on by the plaintiff, did not relate to the suit site and that the plaintiff and his predecessors-in-title had not been in possession and enjoyment of the suit site for a period of 12 years prior to the suit.