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.) Before the trial Court, on the above pleadings, the parties took oral and documentary evidence. The first plaintiff examined herself as P.W.1 besides examining one Kaladi as P.W.2. The plaintiffs exhibited the Gift Deed Ex. A.1 dated 16.9.1998 given by Deivanai in their favour and marked rough sketch as Ex. A.2 apart from marking marriage invitations as Exs. A.3 and A.4 and Ex. A.5 photo and negative. On the side of the defendant, the defendant Perumal examined himself as D.W.1 and also examined one Eswaran as D.W.2. He exhibited the copy of the sale document dated 11.8.1952 in favour of his father as Ex. B.1, original of Mortgage Deed dated 02.12.1988 executed by him in favour of Marudhaiah as Ex. B.2, the original of Mortgage Deed dated 09.01.1991 executed by him in favour of Valliammal as Ex. B.3 and Death Certificate of Deivanai as Ex. B.4. He also exhibited the copy of gift document dated 11.6.1963 written by Gurusamy, father of the defendant in his favour as Ex. B.14 and copy of the gift document dated 30.5.1977 given by the defendant and his mother in favour of the plaintiff as Ex. B.15 apart from marking House Tax receipts, Electricity Bill payment receipt, letter in relation to water connection sent by the Sankarankoil Corporation, survey notice advice and various communications and advices received from the Electricity Board, Corporation, etc. as Exs. B.5 to B.13 and Exs. B.16 to B.19.