BABUJI @ SUSEELA Vs. DHANDAPANI

JUDGEMENT

(1.) The unsuccessful plaintiff who lost the legal battle before the trial court as well as the lower Appellate Court is the appellant in the Second Appeal.

(2.) Admittedly, 22 cents of land comprised in Survey No.391/B5 in Vadalur Villare, Cuddalore Taluk and District bounded on the west by road, south by property of Krishnaswamy, north by pattai and east by north south thar road and then school, originally belonged to Venkatasami, the father of the appellant/ plaintiff. The same has been described as Schedule-A in the plaint. Out of the said 22 cents, 5 cents on the western extremity was settled on one Ramesh, son of the plaintiff. The said Ramesh is no more and he died without marriage and without issues. The said settlement deed dated 04.06.1979 has been produced as Ex.A114. Thereafter, out of the remaining extent of 17 cents, 5 cents on the eastern extremity was sold by the said Venkatasami in favour of Uthandi Padayachi, the father of the respondent/defendant under Ex.B1 dated 05.08.1987. Subsequently, by a settlement deed dated 08.10.1990 marked as Ex.A115, the said Venkatasami settled an extent of 5 cents on his daughter namely the appellant/ plaintiff. However, in the settlement deed marked as Ex.A115, the property already conveyed to the father of the defendant under Ex.B1 was not shown as the eastern boundary, nor was the thar road running north-south on the east of the property shown in plaint A-schedule shown as its eastern boundary in Ex.A115. On the other hand, the school building situated on the further east of the north-south road was shown as the eastern boundary of the property settled under Ex.A115.

(3.) Relying on the fact that the eastern boundary of the property settled on her by her father was given as the school, the appellant/ plaintiff claimed that an extent of 17 cents comprised within the boundaries, was settled on her by her father under Ex.A115 settlement deed. The appellant/plaintiff tried to seek the aid of the principle "boundaries prevail over extent" to show that though the extent noted in the settlement deed was only 5 cents, the actually conveyed extent was 17 cents, namely the remaining extent after deducting the 5 cents settled on Ramesh. Since Ramesh also died before marriage and without issues, the appellant/plaintiff claimed to have succeeded to that property also and thus the appellant/plaintiff made the contention that the entire extent of 22 cents comprised in the above said survey No.391/B5 belonged to her absolutely. However, the appellant/ plaintiff had not chosen to file a suit for declaration of her title in respect of the entire 17 cents lying on the east of the property covered by Ex.A114 settlement deed executed by Venkatasami in favour of Ramesh. On the other hand, she had chosen to file the suit, for the reliefs of declaration and injunction in respect of 5 cents that lies on the eastern extremity of the plaint-A schedule property. In short, what the appellant/ plaintiff had sought for is that she is the absolute owner of the property, which was conveyed by the original owner Venkatasami to the father of the defendant under Ex.B1 three years prior to the date of the execution of the settlement deed in favour of the appellant/ plaintiff. The appellant/plaintiff had also taken a stand that the sale deed executed in favour of the father of the respondent/defendant was sham and nominal and the same was not acted upon. Besides the said stand she had also contended that she had perfected title by adverse possession in respect of the said property covered by the said sale deed executed in favour of the father of the respondent/defendant, which is described in the plaint as 'B' schedule property. The appellant/plaintiff had also contended that the disputed portion, namely the property described in plaint 'B' schedule having an extent of five cents was in occupation of the appellant/plaintiff and she had put up a thatched shed and was using it as cattle shed during night hours and shop during day time.