BASHEER UNNISSA BEGUM Vs. T SUNDARAM DECEASED

JUDGEMENT

(1.) COMMON JUDGMENT: The unsuccessful defendants in the Courts below are the appellants.

(2.) THE case in brief is as follows: THE plaintiff filed a suit for declaration of title to "B" schedule property and also for recovery of possession after removal of the construction put up in the property and for permanent injunction restraining the 1st defendant from putting up any further construction and with a claim of future damages. "A" schedule property originally belonged to one Chinnathai Ammal, maternal grand mother of the plaintiff and she had settled the same in favour of the plaintiff and his mother Gunabushanammal. Subsequent to the settlement, they were in possession of A schedule property. THE plaintiff's mother died and thereafter, the plaintiff became absolutely entitled to A schedule property. THE 1st defendant had purchased the property west of "A" schedule property. In spite of the objection raised by the plaintiff, the 1st defendant had trespassed upon a portion of A schedule property on the western side and put up construction and the trespassed portion is shown as "B" schedule property. THE defendants have no right in B schedule property and hence the suit. THE defendants resisted the suit stating that B schedule property does not belong to the plaintiff and the plaintiff and his mother were entitled only 2380 sq.ft. THE 1st defendant had purchased a vacant site measuring 45" x 35" just north of the plaintiff's property from one Sakkubai and Shanmugam and constructed a shed as early as 1975 and the plaintiff did not object the same. THE 1st defendant had not trespassed in the property belonging to the plaintiff. Separate patta has been issued to the 1st defendant and her property has been subdivided as T.S.102/2. Sankaran, brother of the plaintiff is entitled to the property as a co-owner and the suit is also bad for non-joinder of necessary parties and it is also barred by time. THE trial Court framed 9 issues and on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-41 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-18 were marked. THE trial Court decreed the suit in favour of the plaintiff and aggrieved against this, defendants 1 and 2 preferred A.S. No.159 of 1981 on the file of VI Additional Judge, City Civil Court, Madras and the learned Judge, after hearing the parties, partly allowed the appeal and confirmed the title of the plaintiff relating to the suit property, but remanded only for the purpose of ascertaining the monetary compensation payable to the plaintiff instead of directing delivery of possession after removal of the superstructure. Both sides were given liberty to adduce evidence. Aggrieved against this judgment and decree, defendants 1 and 2 preferred Second Appeal before this Court and aggrieved against the order of remand, the plaintiff preferred C.M.A. No.396 of 1982 on the file of this Court. Pending the appeals, the plaintiff died and his legal representatives were brought on record.

(3.) THE defendants/ appellants in the Second Appeal, on the other hand, contended that the property given to the plaintiff under Ex.A-1 had specific measurements on all sides with a total area of more than 2380 sq.ft. However, the earlier suit filed by the plaintiff in O.S. No.1801 of 1963 was only for an extent of 2380 sq.ft. and in execution of the decree, the plaintiff also took possession only such an extent. As such, the plaintiff is not entitled to claim more than that. THE 1st defendant had purchased vacant site measuring 45" x 35" from Sakkubai and Shanmugam under Ex.B-3 dated 25.6.1975 for a sum of Rs.10,000 and constructed a shed in 1975 measuring 600 sq.ft. and leased out to one Senthil Kumar under a lease deed dated 31.10.1975. THE plaintiff never objected to the construction of the shed. THE vendors of the 1st defendant had purchased a larger extent including the extent of 45" x 35" sold to the 1st defendant from one Narayanan, who in turn purchased from Pavalakodi and her minor children under a sale deed dated 21.8.1957 (Ex.A-34). THE said Pavalakodi had purchased it from her mother Chinnathai Ammal under a sale deed dated 22.6.1953 (Ex.A-32). THE 1st defendant had not trespassed to any property belonging to the plaintiff and the surveyor measured the land and issued patta as T.S.102/2. THE 1st defendant and her predecessors-in-title have perfected title by adverse possession also.