VARADARASU ALIAS DEVARASU Vs. MALONE VEERASAMY ALIAS THANAPAL

JUDGEMENT

(1.) The defendant in O.S.No.572/87 on the file of the First Additional District Munsif, Pondicherry, is the appellant in the second appeal. The respondents filed the suit for a declaration that they are the absolute owners of the B Schedule property, for recovery of possession of the same and for mesne profits past and future, on the following averments: One Periya Ayee Ammal owned and possessed a lot of properties including the plaint A Schedule property. She died about 80 years prior to the suit, leaving behind five sons Amanan, Muthulingam, Thulukkanam, Arjunan and Subbarayan as her heirs. They enjoyed the entire A Schedule property and 4 other equally measured plots on the west of the A Schedule property as set out in the plaint plan. The five brothers divided the properties into five plots described as A, B, C, D and E in the plaint plan. Amanan was allotted the western most plot marked as A in the plan, the second brother Muthulingam the B marked plot, Thulukkanam C marked, Arjunan D marked and Subbarayan E marked. Since on the west, south and north of the plaint Schedule there was no access to road, a lane was opened in the middle by consent among the sharers from the eastern end of Amanan's plot up to the eastern end of Subbarayan's plot opening at Muthu Mariamman Koil Street as a common lane for all of them. The lane lies west to east across the plots of all the four younger brothers. Subbarayan died 65 years prior to the suit leaving behind his only son Rangasamy to survive him and inherit the plaint A Schedule property and marked as e area in the plaint plan. He was in enjoyment for over 15 years and died in the year 1924 leaving behind his only son Vadivelu as his sole legal heir. Vadivelu was born in the ancestral house in the A Schedule property itself, lived there and died in 1963. He died leaving behind one Ponnusamy and the first plaintiff. Ponnusamy lived in the suit property ever since his birth. They have enjoyed the property peacefully without any interruption whatsoever. Arjunan, who was the owner of the plaint plan D marked portion, died leaving behind his two sons Jagannathan and Thulukkanam. Jagannathan died leaving behind his two sons Kuppusamy and Ganesan. Kuppusamy died leaving behind his two sons Samikannu alias Balan and Varadharasu alias Devarasu. Varadharasu alias Devarasu is the defendant in the suit. Thulukkanam died leaving behind his two sons Subramanian and Ganapathy. Subramanian died leaving behind his two children Thayarammal and Shanmugham.

(2.) After the death of defendant's father Kuppusamy about 20 years prior to the suit, the defendant picked up a quarrel with his brother Balan, due to certain disputes arising between them. In 1978 the defendant approached the first plaintiff and his brother Ponnusamy, father of plaintiffs 2 and 3 and requested them to permit him to live in the northern portion of A Schedule property separately demarcated as B Schedule in the plaint plan. Since the defendant happened to be a relative and out of sympathy, the first plaintiff and Ponnusamy permitted the defendant to live in the B Schedule property on condition that he should quit and deliver possession within a period of one year. The defendant has been in permissive occupation of B Schedule property from 1978. Ponnusamy died in 1978 leaving behind his two sons, who are plaintiffs 2 and 3. As undertaken by him, the defendant did not vacate the property within one year from 1978. There was a panchayat held on 6.11.1986 in the presence of Madiyan Arumugham, Desiya and Adhikesan, who are also trustees of Mariamman Temple. The defendant demanded the plaintiffs to sell the B Schedule property to him or else to grant him some more time to vacate the property. The defendant's statement was recorded by the panchayathars on the reverse side of the petition given by the plaintiffs duly signed by them. The plaintiffs want to effect partition of the entire A Schedule property among themselves for their personal occupation and therefore they need the B Schedule property. The plaintiffs' demand on that ground was also rejected by him. A notice dated 23.7.1986 was issued to the defendant revoking the licence granted and calling upon him to quit and deliver vacant possession and also to damages at the rate of Rs.10/- per month from the date of notice till the date of delivery of vacant possession. The defendant sent reply dated 11.8.1986 denying the plaintiffs' contention and taking a false plea that he has been living in the B Schedule property as owner of the same and not on the permission of the plaintiffs. The heirs of Amanan and Arjunan have instigated the defendants not to vacate the B Schedule property. The plaintiffs sent a notice to them also. They received the notice and sent a reply admitting the plaintiffs' right and further stating that they are not in collusion with the defendants. One of the heirs denied the receipt of the notice.

(3.) The defendant resisted the suit contending inter alia as follows: