R KARITHIMMA NAIDU Vs. R VENKATARAMA GOUNDER

JUDGEMENT

(1.) HEARD both sides.

(2.) FOR the purpose of convenience the parties are arrayed as per ranks in the suit. 2.2. The above appeal is directed against the judgment and decree dated 24.6.1999 in A.S.No.715 of 1987 of the learned single Judge reversing the judgment and decree dated 13.7.1987 in O.S.No.387 of 1984 on the file of the III Additional Subordinate Judge, Coimbatore, filed by the appellant herein for recovery of possession of the suit property, damages for a sum of Rs.15,000 from the defendants 1 and 2 for their use and occupation of the properties, and for future damages at Rs.5,000 per year from the date of filing the suit, under the following facts and circumstances of the case. 2.3. The suit property consists of two items. Item No.1 of the suit property is the portion at door No.10/6, (New No.1/16), Pillaiyarkoil Street, Katoor, Coimbatore and Item No.2 of the suit property is the located at door No.91, Mall Mill Road, Coimbatore. 2.4. The case of the plaintiff is that both the suit properties originally belonged to one Rangasamy Gounder, who had two sons, namely R.Rakkianna Gounder and R.Venkatarama Gounder, of whom R.Rakkianna Gounder died before 1944 leaving his wife Rakkiammal and three sons, namely R.Ramgasamy, R.Vellingiri and R.Ramasamy. The said Rangasamy Gounder died in the year 1944, thus leaving R.Venkatarama Gounder (first defendant) and Ramathal (second defendant), namely the wife of the first defendant R.Venkatarama Gounder, Rakkiammal, wife of R.Rakkianna Gounder, and her three sons R.Rangasamy, R.Vellingiri and R.Ramasamy. 2.5. The plaintiff purchased item No.1 of the suit property from R.Venkatarama Gounder, the first defendant, R.Rangasamy, R.Vellingiri and Minor Ramasamy, represented by mother and guardian Rakkiammal, by sale deed dated 15.7.1957, marked as Ex.A-1 on behalf of the plaintiff. After purchasing the property under sale deed dated 15.7.1957, marked as Ex.A-1, the plaintiff leased out item No.1 of the suit property to the first defendant and others. Since the first defendant committed willful default in paying the rent, the plaintiff initiated eviction proceedings against the first defendant and others in R.C.O.P. No.84 of 1962 on the file of the learned Rent Controller-cum- District Munsif, Coimbatore and obtained an order of eviction dated 15.6.1962, which was on appeal confirmed in R.C.A. No.78 of 1962 by order dated 18.10.1962, pursuant to which the plaintiff preferred E.P. No.108 of 1966 before the learned Rent Controller to evict the petitioner. 2.6. The plaintiff further contends that he had purchased the suit property in item No.2 in Court auction in E.P. No.144 of 1964 in S.C. No.161 of 1963 on the file of the Sub Court, Coimbatore on 3.3.1965 and also took possession of the same, as per Ex.A-2. 2.7. However, at the time of executing the eviction proceedings in E.P.No.108 of 1966, the plaintiff contends that the first defendant instigated his nephew R.Ramasamy, who is nonetheless the third son of R.Rakkianna Gounder, who was a minor at the time of execution the sale deed dated 15.7.1957 and represented by his mother and guardian Rakkiammal, filed O.S.No.79 of 1966 before the Sub Court, Coimbatore on 4.3.1966 for partition and separate possession of the property in both item Nos.1 and 2 of the suit schedule property and also obtained an order of interim injunction on 5.3.1966 restraining the execution of eviction order made in R.C.O.P. No.84 of 1962, alleging that the sale deed dated 15.7.1957 is not binding on him as he was minor on that day and the same was not in his interest. 2.8. Ultimately, a preliminary decree was passed in favour of the R.Ramasamy on 27.9.1971 allotting 1/6th share in item Nos.1 and 2 of the suit schedule properties. However, while passing final decree proceedings on 16.9.1975 in I.A. No.66 of 1972, the Court instead of allotting 1/6th share in both item Nos.1 and 2 of the suit schedule properties, allotted a consolidated portion in item No.1 of the suit schedule property. The plaintiff, therefore, filed E.P.R. No.72 of 1978 for possession against the first defendant and took possession of the 5/6th share of the suit properties with police aid on 12.7.1979. However, the defendants 1 and 2 successfully broke open the locks, reoccupied the suit premises and trespassed into the same. 2.9. According to the plaintiff, since he has taken delivery of possession through Court on 12.7.1979, nothing survives in E.P. No.108 of 1966 filed to execute the order of eviction dated 15.6.1962 made in R.C.O.P. No.84 of 1962 and therefore, E.P. No.108 of 1966 has become infructuous. 2.10. The plaintiff also contends that since the defendants are only trespassers, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act are not applicable. 2.11. The plaintiff, therefore, contending that before evicting 3 to 8, defendants 3 to 6 were paying rent of Rs.100 per month and defendants 7 and 8 were paying rant at Rs.500 per month, claims that he is entitled to a minimum of Rs.5,000 a year as damages for the use and occupation of the suit properties at least for a period of three years prior to filing of the suit, and therefor claims Rs.15,000 and further claimed a sum of Rs.5,000 as future damages till the date of possession of the suit property.

(3.) THE learned single Judge, considering the only point raised in the appeal, i.e., whether the plaintiff was put in physical possession of the property as per Ex.A-9, dated 12.7.1979, held that delivery of possession under Ex.A-9 is only a symbolic delivery, and therefore, accepted the case of the defendants that they are entitled for the benefit of adverse possession and allowed the appeal and dismissed the suit.