VAITHINATTAR Vs. SAKKUBAI AMMAL

JUDGEMENT

(1.) This Second Appeal is preferred against the judgment and decree dated 23-12-1992 rendered in A.S. No. 123 of 1992 by the Court of Additional Subordinate Judge, Cuddalore, thereby reversing the judgment and decree dated 18-1-1990 rendered in O.S. No. 464 of 1982 by the Court of Principal District Munsif, Kallakurichi.

(2.) Tracing the history of the above second appeal coming to be preferred by the plaintiff in the suit, what comes to be known is that the respondent has filed the suit for declaration and permanent injunction, wherein the suit property originally belonged to one Fathima Bi; that the plaintiff purchased the suit property with defined boundaries from the original owner, Fathima Bi under a registered sale deed dated 22-9-1969 for a valuable consideration of Rs.1275/-; that on the date of purchase, the plaintiff took possession of the suit property and is in enjoyment of the same; that the plaintiff would produce a registration copy of the sale deed dated 22-9-1969 and also a kist receipt for payment of kist for patta No. 582 in which the suit property situates; that as per the sale deed, the plaintiff has purchased the suit property measuring 0.05 cents situate immediately to the west of the main road from Fathima Bi; that the title of the plaintiff over the suit property has also been perfected by adverse possession; that the defendant who is an influential person in the village appears to have purchased some extent of the property from the plaintiffs vendor Fathima Bi subsequent to the purchase by the plaintiff, to the south of the suit property; that the defendant has put up Petrol Bunk; that the purchase of the defendant being subsequent to the plaintiffs purchase, he cannot claim any right or interest in the suit property, to the south of which alone has he acquired property from Fathima Bi; that the plaintiffs husband is away in North India on professional duty: that the plaintiff is residing at Kallakurichi; that taking advantage of the absence of the plaintiff from the suit property, the defendant appears to have attempted to enter into the suit property on 1-6-1982 and is also attempting to put up some construction adjacent to the petrol bunk; that the defendant is unlawfully trying to dig up foundation pits and to put up construction encroaching upon the suit property; that coming to know of it when the plaintiff questioned him about the impropriety of his action, the defendant refusing to heed to the request is trying to go ahead with his proposed construction over the suit property illegally, falsely claiming right therein; that the defendant claiming title to the property under the same vendor under a subsequent purchase is estopped from denying the title of the plaintiff; that if the defendant is not restrained and is allowed to put up construction over the suit property, the plaintiff will suffer heavy loss and irreparable damage; that the defendant being influential, the plaintiff is left with no other option except filing the suit for declaration of her title and for permanent injunction and hence the present suit.

(3.) On the contrary, the defendants/appellants In their written statement would submit that the property comprised in S.No. 57/1A was originally belonged to one Fathima Bi who purchased through a registered sale deed dated 26-1-1957; that she was in peaceful possession and enjoyment of the same; that on 23-9-1969 the said Fathima Bi sold a portion of 0.05 cents on the southern side in R.S. No. No. 57/1A to the plaintiff; that subsequently on 27-11-1969 and 6-12-1969, the said Fathima Bi sold an extent of 0.06 cents and 0.15 cents respectively to one Kothandapani Naidu; that he was in peaceful possession and enjoyment of the same till he sold to his son Janarthanan on 14-12-1973 through a registered deed; that since then his son Janarthanan is in peaceful possession and enjoyment of the property purchased by him; that the plaintiffs vendor Fathima Bi filed a suit against the defendant and his son Janarthanan for declaration of title over the unsold portion of the property comprised in R.S. No. 57/1A and for permanent injunction in O.S. No. 29 of 1977; that the Court was pleased to appoint an Advocate Commissioner and the Advocate Commissioner measured the properties including that of the plaintiff and determined the boundaries of all the properties in R.S. No. 57/1A; that as per the description of the properties in the sale deed of the plaintiff and the sale deed of his son, the suit property locates on the southern side of the property of his son, i.e. on the extreme southern side of R.S. No.57/1A; that the said suit was dismissed by this Court; thereafter Fathima Bi preferred an appeal before the Subordinate Judge, Cuddalore in A.S. No. 354 of 1978 and the appeal was also dismissed and thejudgment and decree of the trial Court was confirmed; that it is false to state that the defendants are influential person and had trespassed into the said suit property; that the defendant never dug a pit for laying foundation in the suit property; that his son is ing within his property. On such averments, the defendants would pray to dismiss the suit with costs.