BALARAMA NAICKER Vs. LAKSHMI

JUDGEMENT

(1.) THE present second appeal has been filed by the defendants as against the concurrent findings of the Courts below.

(2.) BRIEF facts leading to the filing of the second appeal are given as under:- The plaintiffs 1 and 2/respondents herein are sister and brother, born to Arumugham and Dhanappaggiammal. The defendant/appellant herein is the son of Kishtappa Naicker, who is the elder brother of Arumugham. The suit property is a poramboke land bearing new S.No.411/5 and old S.No.377/1, and the same was encroached by one Arumugham, the plaintiffs' father and for which, 'B' memo was issued in his favour, which proves the possession and enjoyment of the plaintiffs' father. After the death of the plaintiffs' father, the mother of the plaintiffs also died on 19.02.1996. Therefore, the plaintiffs are the legal heirs of their parents and to that effect, they have also produced the VAO certificate. It was also claimed that as the encroachment of suit property by Arumugham, the plaintiffs' father, as early as 1965, the parents of the plaintiffs were in enjoyment till their life time and thereafter, the plaintiffs continues to be in possession and enjoyment of the same till now. This continuous occupation of the suit property goes to show that they have perfected the title by occupation and also by prescription as well. A patta was also granted in the name of the plaintiffs' mother on 23.03.1996 also supports the case of the plaintiffs. Whileso, the plaintiffs raised several trees in the suit property. Further, it was also pleaded that the defendant, being the plaintiffs' paternal uncle's son, was allowed to reside in 'EFGH' portion of the suit property from the plaintiffs' mother 6 years ago. Subsequently, as promised, the defendant refused to vacate by taking advantage of demise of the plaintiffs' mother. The defendant attempted to grab the property, by joining his name in the house tax receipt, falsely alleging that he is also one of the sons of Arumugham. Since the defendant is creating some fraudulent documents to show that he is the son of Late Arumugham, the plaintiffs filed the present suit seeking for declaration, with a consequential permanent injunction and also recovery of possession.

(3.) UNDER these circumstances, the trial Court, after receiving the report of the Advocate Commissioner, took up the matter for trial. Before the trial Court, both parties agreed that the suit property is a Government poramboke land. Before the enquiry, it was admitted by the defendant that when the defendant's father was in possession of the suit property, he allowed the plaintiffs to occupy 9 cents of land. However, the plaintiffs also deposed that in S.No.411/5, out of 30 cents, 25 cents are belonging to plaintiffs. But, the defendant attempted to encroach the said land for constructing the house. DW2, in his deposition, has stated that the plaintiffs' mother was permitted to construct a small house in the land belonging to the defendant. Therefore, the learned trial Court came to the conclusion that the plaintiffs are entitled to the relief as prayed for. Aggrieved by the same, when an appeal was filed before the learned first appellate Court, the learned first appellate Court also upheld the judgment and decree passed by the learned trial Court. As against the same, the present second appeal has been filed.