MOHAMMED MOHIDEEN LEBBAI Vs. MOHAMMED ASAN THARAGANAR

JUDGEMENT

(1.) This second appeal has arisen from the judgment of the learned Subordinate Judge, Ambasamudram, made in A.S.No.108/92, whereby the judgment of the trial Court in a suit for permanent injunction granting the relief, was reversed.

(2.) The following facts are noticed in the pleadings of the parties: The suit property and other properties belonged ancestrally to the plaintiff's and his brother's families, and they have been enjoying the same solely. There was a registered partition between the heirs of K.K.Umar Lebbai on 24.1.1949, wherein the suit property among others was allotted to the plaintiff and other heirs through the second wife of Umar Lebbai, as item 27. From that time onwards, the plaintiff was in possession and enjoyment of the same. The defendant has no right, possession or interest in the suit property. The property on the west of the suit property belonged to the defendant's predecessorin-title. In the said partition deed, the intervening wall is shown as a common wall. On the east of the wall, the defendant has no right, title or interest. This was also admitted by the defendant's predecessor-in-title namely Nalla Mohideen Lebbai in the rectification deed dated 22.6.1938. Again on 15.12.1943, the grandfather of the defendant namely Umar Lebbai had executed a gift deed, wherein he admitted the western wall of the suit property as a common wall. Thus, the defendant is not entitled to any right over the same. There was a Ghadi Kana in the plaint Schedule property. The plaintiff was paying the kist. The defendant was trying to interfere with the plaintiff's peaceful possession and enjoyment of the suit property. Hence, the suit.

(3.) The suit was resisted by the defendant stating that the plaintiff was entitled to a space, measuring 2 + C.C. east west; that his brother purchased the same from one Viswa Nalla Muhaideen Lebbai under a registered sale deed dated 20.2.1943; that the plaintiff can claim only this extent; that the partition deed was a self serving document, and it cannot confer any right upon the plaintiff; that the recitals in the partition deed will not be binding upon the defendant; that the defendant was not aware of the rectification deed dated 22.6.1938; that the rectification deed was a fraudulent one; that the plaintiff and his brother had fraudulently introduced boundary recitals in the documents; that no wall was ever in existence ; that the plaintiff made encroachment into the defendant's site; that the suit property originally belonged to Ahamed Meethi Lebbai, and after his death, his two sons Kader Muhaideen Lebbai and Abu Bucker Lebbai and his daughter Saral Ammal; that the daughter executed a sale deed on 17.5.1926 in favour of the defendant's grandfather Umar Lebbai and defendant's mother Muhaideen Bathummal, conveying her 3/8th share of the properties; that the defendant's grandfather purchased an extent measuring 5 C.C. east west and 55 C.C. north south from Nalla Muhaideen Lebbai on 1.6.1938, and thus, Saral Ammal, Umar Lebbai and Muhaideen Bathummal became entitled to 9.5 C.C. east west and 55 C.C. north south; that except 2 + C.C., the remaining extent in the suit property belonged to the defendant; that Naina Mohammed Muhaideen Lebbai, the maternal uncle of the defendant's mother, was managing the properties belonging to the defendant and his brothers; that taking advantage of the close relationship, he has introduced false recitals in the documents, and hence, the suit was to be dismissed.