MANNANGATTI GOUNDER Vs. JANARTHANAM

JUDGEMENT

(1.) The defendant in the suit is the appellant.

(2.) The case in brief is as follows:- The plaintiff filed a suit for declaration and permanent injunction. The schedule mentioned property belong to the plaintiff. Originally the property belonged to one Rangasamy Reddiar, the father of the plaintiff. Rangasamy Reddiar had three wives, namely, (1) Thayarammal, (2) Radha Bai and (3) Adhilakshmi Ammal. The first wife Thayarammal died in the year 1942 leaving behind two daughters namely, Angammal and Saroja and they also died subsequently. The second wife Radha Bai also died in 1943 without any issues. The third wife Adhilakshmi Ammal alone is alive and the plaintiff and one Chandra are her children. The defendant has no right whatsoever in the suit property. The plaintiff and her mother were enjoying the property for more than the statutory period. Hence, the suit. The defendant filed a written statement and denied the various averments. Angammal and Saroja are not the daughters of Thayarammal. Thayarammal was the first wife of deceased Rangasamy Reddiar and the two daughters are named Krishnaveni and Suseela. After the death of Thayarammal, he married one Radha Bai, who died issueless. Rangasamy Reddiar has not legally married Adhilakshmi Ammal and the plaintiff is bound to prove the validity of the marriage. The Will dated 20th October 1963 was not at all executed by Rangasamy Reddiar when he was in a sound and disposing state of mind. Rangasamy Reddiar was not alive on 20.10.1963 and he died long prior to that. Even if there is any Will, it is a rank forgery. Krishnaveni and Suseela along with their father have mortgaged all the suit items in favour of Land Mortgage Bank, Kallakurichi under a registered mortgage deed dated 18.08.1958. Further, under a Settlement Deed dated 30th September 1940, a portion of item No.1 and certain other properties were settled in favour of Thayarammal. In the oral partition that took place among the sharers in or about 1979 April, item No.4 fell to her share. She had executed a registered sale deed dated 05.05.1980 in favour of the defendant for Rs.9,500/=. He took possession of the property. The property must be deemed to be joint family property. The plaintiff is not in possession of the items. Rangasamy Reddiar had executed a settlement deed dated 27.08.1940 in favour of Radha Bai giving item No.4 among other items as a marriage settlement. The suit is also bad for non joinder of necessary parties. The trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-4 were marked and on the side of the defendant, D.W.1 was examined and Exs.B-1 to B-3 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.53 of 1990 on the file of Sub Court, Cuddalore and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendant has come forward with the present second appeal and the plaintiff filed Cross Objection No.23 of 1993 relating to the finding of the Will Ex.A-1.

(3.) At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration: Whether the lower appellate Court was right in law in accepting the plea of adverse possession without any plea or any issue and in the absence of evidence ?