MUNIAMMAL Vs. MUTHU GOUNDER DIED

JUDGEMENT

(1.) The defendant in O.S.No.208 of 1985, on the file of the Subordinate Judge's Court, Vellore, is the appellant in the second appeal. The first respondent herein, who died pending second appeal and whose Legal Representatives have been brought on record as the other respondents, filed the suit for declaration and permanent injunction in respect of A and B schedule properties on the following averments:

(2.) Plaint A and B schedule properties originally belonged to one Benjamin. They are adjacent to each other. Benjamin sold the properties to Dhanabakiyam on 24.9.1951. By mistake, the "B" schedule property was omitted to be mentioned in the sale deed. However, eversince the date of sale in her favour, Dhanabakiyam was in possession and enjoyment of both the items. On 15.3.1967 Dhanabakiyam sold the properties to the plaintiff. Since the date of his purchase, the plaintiff had been in possession and enjoyment of the properties. As regards the property not covered by the sale deed, the plaintiff had prescribed for title by adverse possession. He had been in possession and enjoyment of B Schedule property by putting up a thatched house, cow shed and by residing in the thatched house. Adjacent to the thatched house he put up a pucca house and he had been living there. The house has been assessed to property tax. He had planted coconut trees, mango trees, mannilla tamarind trees, guava trees, and sweet-lime trees. The plaintiff had also dug a well in the A schedule property and had accumulated the earth removed in the B schedule property. Both the properties are on the same level. B schedule property is a part of Survey No.445 and it is shown in yellow colour in the plan attached to the plaint. The defendant had purchased the property belonging to her in 1951. The plaintiff and his vendor Dhanabakiyam had been in possession and enjoyment of B schedule to the knowledge of the defendant for a long time. The defendant had not claimed any right in B schedule property since 1951. She has lost whatever right she had in the property, the plaintiff having prescribed for title by adverse possession. Just prior to the suit, the suit properties and the adjacent poramboke land were measured and it was found that the defendant was in possession of two acres of government land. On the basis of this, the defendant was trying to claim rights in B schedule property. She is also attempting to encroach upon the property. B schedule property had been assigned to one Narayanan belonging to the Scheduled Caste Community and hailing from Kangeya Nallur village. In these circumstances, the suit has been filed for declaration of plaintiff's proprietory right or his possessory title to B schedule property and for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the B schedule property.

(3.) The defendant resisted the suit contending inter alia as follows: In the sale deed, dt.24.1.1951 in favour of Dhanabakiyam, only A schedule property is mentioned. She had no right in B schedule property. The averment that Dhanabakiyam was in possession and enjoyment of B schedule property is false. Equally, the claim by the plaintiff that he had been in possession and enjoyment from the date of sale, i.e. on 15.3.1967, of the B schedule property, is also false. His claim that he put up a permanent structure in 1951 is also false. The defendant purchased 5.86 acres comprised in S.No.445/3 on 26.3.1955 from one Narayanan of Kangeya Nallur. The plaintiff has property adjacent to the B schedule property. Because of that, the defendant sought the assistance of the plaintiff to cultivate her property in B schedule. In 1980, she also put up a brick building in the B schedule property. When the plaintiff and the defendant were friendly, the plaintiff sought the defendant's permission to occupy her property, and the defendant also permitted him. The plaintiff also supervised the defendant's land for two years prior to the suit. The plaintiff wanted the defendant to sell her two acres to him, but, the defendant refused. Ill feeling arose because of that. Close to B schedule property, Vellore Engineering College is situated. The value of the property has gone up. With a view to cheat and defraud the defendant, the plaintiff is claiming right in B schedule property. He has occupied the B schedule property unlawfully. The plaintiff had not been in possession nor had he claimed any right in B schedule property. It is not correct to say that just prior to the suit, the suit properties and the adjacent government poramboke lands were measured. The plaintiff has no right whatsoever in B schedule property. The suit is liable to be dismissed.