PERUMAL Vs. MADATHI AMMAL

JUDGEMENT

(1.) THIS is an appeal by the defendant in a suit for permanent injunction, challenging the judgment and decree dated 28.4.2008 passed by the First Appellate Court in A.S. No. 58 of 2006 wherein and by which the judgment and decree dated 03.01.2006 passed by the Additional District Munsif, Sankarankoil, in O.S. No. 140 of 2004 was reversed allowing the First Appeal at the instance of the plaintiffs, who sued for declaration and permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the suit second schedule property and for removal of the structures put up by the defendant in the suit third schedule property, in default, for grant of mandatory injunction to remove the same at the cost of the defendant. The case of the plaintiffs is that the suit first schedule property, which originally belonged to one Sankaran, was sold to one Gurusamy, who, retaining one portion of the same in Door No. 74, gifted an extent of 4.5 Carpenter's feet East - West and 6.5 Carpenter's feet North - South to the defendant by virtue of Gift Deed dated 11.6.1963. Subsequently, the said Gurusamy died leaving behind his wife Deivanai as his legal heir and she was in possession and enjoyment of the suit property. While so, the said Deivanai, gifted the suit second schedule property, which is part of first schedule property, to the plaintiffs by way of Gift Deed dated 16.9.1998 and then onwards, according to the plaintiffs, they have been in possession of the same. It is further stated that the second plaintiff was married to the son of the defendant Sankaralingam and in view of the relationship, during December 2000, they granted oral permission to the defendant to put construction in the pathway leaving the access to them to the suit second schedule property through the house of the defendant and subsequently, the defendant refused to allow the plaintiffs to use the entrance of his house to reach suit second schedule property. The plaintiffs, therefore, filed suit O.S. No. 140 of 2004 on the file of Additional District Munsif, Sankarankoil, for declaration that the suit second schedule property belongs to the plaintiffs and for permanent injunction restraining the defendant from interfering with the peaceful possession and for a mandatory injunction to remove the structures erected on the suit third schedule property.

(2.) THE defence of the defendant was that the suit properties which originally belonged to one Sankaran, were given to Gurusamy, by way of registered sale deed dated 11.8.1952 and he, subsequently, gifted the same to the defendant by Gift Deed dated 11.6.1963 him and after his death, he and his mother Deivanai have been in possession and enjoyment of the same. According to the defendant, the suit property has only one entrance and no common pathway. It is further averred that due to a family arrangement between the defendant, his mother Deivanai and the first plaintiff, the suit first schedule property was gifted to him. According to him, while he has been in possession and enjoyment of the suit property, the plaintiffs tried to interfere with his possession and filed a false suit claiming to be in possession.

(3.) THE trial Court, after evaluating entire evidence and on consideration of the arguments advanced by the learned counsel for the parties, finding that the plaintiffs had not made out, even prima facie, either tide or possession over the suit property, held that the defendant was in possession of the suit property and accordingly, dismissed the suit. On appeal in A.S. No. 58 of 2006, the learned First Appellate Court/Subordinate Judge, Sankarankoil, relying on the Gift Deed in favour of plaintiffs, found that plaintiffs have been in possession of the suit property and consequently decreed the suit as prayed for, reversing the judgment and decree of the trial Court. It is against the said judgment, the Second Appeal is preferred at the instance of the defendant.