THILAGAVATHI Vs. V. SAMIAPPAN

JUDGEMENT

(1.) Challenge in this second appeal is to the judgment and decree, dated 05.10.2005 passed in A.S.No.15 of 2005 by the Subordinate Judge, Palani, confirming the judgment and decree passed in O.S.No.114 of 2000 on the file of the District Munsif, Palani, dated 15.02.2005.

(2.) The respondent herein as plaintiff has instituted Original Suit No.114 of 2000 on the file of the trial Court seeking the relief of declaration and recovery of possession, wherein the present appellant has been shown as defendant.

(3.) It is averred in the plaint that the suit property originally belonged to one Ramasamy Pillai and Muthuveera Pillai and they conveyed the same to the plaintiff's father Vairana Pillai under the sale deed dated 19.08.1908. The said Vairana Pillai died 40 years age leaving his two sons namely, the plaintiff and Maruthanayagam and two sisters. There was a family arrangement among them, in which the suit property was given to the plaintiff 25 years ago and he was in possession and enjoyment of the same. The defendant is the daughter of one Karuppai Ammal. The Karuppai Ammal's mother is Parvathi Ammal. When the plaintiff moved out of his village on account of his employment, the said Karuppai Ammal encroached the suit property and put up a thatched shed in the year 1978. When the plaintiff came to know about the same, he initiated action to vacate her through Executive Magistrate. At that time, one Savadammal filed suit in O.S.No.547 of 1981 against the Karuppai Ammal and Parvathi Ammal claiming title over the suit property and for recovery of possession. The plaintiff, after knowing the same, impleaded himself as a 3rd defendant in the said suit and filed written statement claiming title to the property and for recovery of possession from the 1st defendant. The counter claim case against the 1st defendant was decreed. As against the same, the plaintiff filed an appeal before the District Court, Dindigul, in A.S.No.64 of 1985 and the defendants 1 and 2 filed Cross Objection in the same. The appeal and Cross Objection were dismissed. Against the same, the defendants 1 and 2 filed S.A.No.996 of 1986 before the High Court, Chennai. Pending second appeal, the defendants 1 and 2, who are the appellants in S.A.No.996 of 1986 died. However, this fact was not brought to the notice of the Court. The High court allowed the appeal only on the substantial question of law that there cannot be a counter claim between the defendants. However, the the court had observed that if the 3rd defendant filed fresh suit against the appellants, it is open for him to plead and substantiate before the trial court as to whether he was entitled to the benefit of exclusion of time spent in the proceedings in the suit and appeals, as provided under section 14(1) of the Limitation Act. The appellants Karuppai Ammal and the Parvathi Ammal left the defendant as their only heir. The defendant is in possession of the suit property, after the death of Karuppai Ammal and Parvathiammal and Karuppai Ammal was only a trespasser, the defendant herein, who is the daughter of the said Karuppai Ammal had in the suit property, she had not also claimed title to the suit property by adverse possession. Since the plaintiff herein was prosecuting the proceedings pertaining to the suit property, the time spent in the earlier proceedings may be excluded in computing the period of limitation of 12 years, provided in the law for recovery of suit property. Hence, the suit for the reliefs as stated above.