N S SPANCE Vs. D S KANAGARAJAN

JUDGEMENT

(1.) The plaintiff, unable to get a decree for declaration of his title to the suit property and for a permanent injunction, concurrently, before the Courts below, has preferred this Second Appeal.

(2.) The suit property originally belonged to one D.K.Srinivasa Chettiar, the father of the first defendant ancestrally. It seems, he had sold the suit property to the plaintiff's paternal uncle by name, N.A.Perianna Chettiar on 22.5.1960, for the valuable consideration stated therein. Perianna Chettiar and his brother, Subramania Chettiar's sons have partitioned their family properties in the year 1958 under a family arrangement. Thereafter, alone Perianna Chettiar had purchased the suit property, in which others have no interest. Since Perianna Chettiar had no male issues and the plaintiff was looking after the affairs of the family and helping Perianna Chettiar, Perianna Chettiar gave the suit property to the plaintiff, in or about the year 1970 and from the said date onwards, the plaintiff continued to be in possession of the suit property. The right vested in favour of the plaintiff by Perianna Chettiar was confirmed in the arrangment dated 30-10-1972. In pursuance of the above, mutation took place in the property register and connected records and on that basis also, the plaintiff was enjoying the property, paying tax, leasing out the same to third parties, to the knowledge of the first defendant, who is adjacent owner of the suit property. Thus the plaintiff has perfected title to the suit property by adverse possession, being in possession and enjoyment of the same well over the statutory period. The defendants, who have no right and who were never in possession of the suit property are attempting to take possession by illegal method, trespassing into the suit property, denying the title and to prevent the same, declaration and injunction are necessary. Thus, tracing the title to the suit property, fixing the cause of action for the suit, the appellant had filed the suit for the above said relief.

(3.) The first respondent-defendant in his written statement denying the averments in the plaint and disputing the sale deed said to have been executed by D.K.Srinivasa Chettiar contended, that the plaintiff was never in possession and enjoyment of the suit property, either on the basis of the sale deed dated 22.5.1960, in favour of Perianna Chettiar or on the basis of the alleged arrangement in his own right. Thus, disputing the possession, adverse possession claimed by the plaintiff was also denied. It is however, contended in the written statement that the first defendant had filed a partition suit including this property in O.S.No.69 of 1968, on the file of Krishnagiri District Court impleading Perianna Chettiar also as the 16th defendant, in which, a preliminary decree has been passed on 10-8-1972, followed by a final decree proceedings pending. In view of the above fact, according to the defendants, the suit is barred by res judicata. The suit was also opposed on the ground of non-joinder of necessary parties, since according to the defendants, the plaintiff is not the legal heir of Periyanna Chettiar. Thus disputing the entire case, a prayer was made for the dismissal of the suit with exemplary costs.