C ARUMUGAM Vs. T ARUMUGAM

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned Subordinate Judge, Sivaganga made in AS No.30 of 1989 wherein the judgment of the trial court in a suit for declaration and permanent injunction was reversed by granting a decree in favour of the plaintiffs.

(2.) The short facts for the disposal of this second appeal are as follows: The first plaintiff's father Doraisamy Ambalam and the husband of the second plaintiff late Ramanathan Ambalam were brothers and the plaintiffs 3 to 5 are the children of the second plaintiff and late Ramanathan Ambalam. The suit property originally belonged to the ancestors of these plaintiffs. The great grand father of the first plaintiff and his brother executed a hypothecation deed on 22.10.1910 hypothecating the suit property to one Subramanian Chettiar. The said Subramanian Chettiar filed a suit in OS No.752 of 1917 before the District Munsif, Sivaganga for recovery of mortgage debt and obtained decree. From the date of the delivery, the said Subramanian Chettiar had been in possession of the property till his life time and on his death, his son sold the land to Doraichamy Ambalam by a registered sale deed dated 26.12.1952. Hence the property belonged to the family of the plaintiff. The defendants claimed the property on the basis of certain Revenue Court proceedings before Settlement Department. Patta was issued in favour of the plaintiffs and the land has also been subdivided amongst the plaintiffs' family and till date they continued to be in possession of the property by paying kist. Now, recently, the Special Tahsildar for land records under the updating of land records has passed orders cancelling patta issued in favour of the plaintiffs and issued patta in favour of the defendants. The continuous payment of kists from 1958 till date with records of title proving the origin of their title and possession of the plaintiffs to the property. The defendants are trying to interfere with the possession of the property, and hence, there arose a necessity for filing of the suit.

(3.) The suit was resisted by the defendants stating that except the defendants 2 to 5, the first defendant is having other daughters; that they were not added as parties to the suit; that the plaint averments are false; that the suit property was not in possession of the predecessor-in-title of the plaintiffs; that the property was not mortgaged to Subramaniam Chettiar; that the property was allotted to the first defendant, subsequent to the partition between the first defendant and his pankalis; that the first defendant has been paying tax; that it is false to state that the first defendant attempted to trespass in to the suit property, and hence, the suit was to be dismissed.