ELUMALAI Vs. MALLIKA MINOR PRABU

JUDGEMENT

(1.) The present second appeal arises out of the judgment and decree of the Court of Principal Subordinate Judge at Tiruvannamalai in A.S.No.47 of 2011 dtd. 12/9/2012 in confirming the judgment and decree of the Additional District Munsif at Tiruvannamalai in O.S.No.756 of 2004 dtd. 26/7/2011.

(2.) O.S.No.756 of 2004 is a suit filed for declaration of title and for injunction. The case of the plaintiff is that the property originally belonged to one Ramasamy Reddiar. Ramasamy Reddiar executed a sale deed in favour of one Virudhambal on 12/4/1940. The said Virudhambal had executed a settlement deed in favour of her son Ramasamy Gounder on 19/12/1981. Ramasamy Gounder had disappeared about 10 years ago and therefore, there is a presumption of civil death. The plaintiffs 1 to 3 are the legal heirs of Ramasamy Gounder's first son Pandurangan and other plaintiffs are his children. Ramasamy Gounder had married one Dhanabagyam and begot Pandurangan and other plaintiffs. According to them, the defendant who is the sister's son of Ramasamy Gounder attempted to interfere with the peaceful possession and enjoyment of the property and therefore, they were constrained to file a suit for declaration of title and for injunction.

(3.) The Defendant entered appearance and took two pleas, namely that the property does not belong to Virudhambal herself but was acquired by her husband Perumal Gounder for the benefit of the family in the name of Virudhambal. He would state that he filed a suit in O.S.No.123 of 1991 for partition where this item was shown as the 8 th item of the property. He stated that on the basis of the partition suit, in which he obtained an ex parte decree, he filed R.E.P.No.76 of 2004 and took delivery of the property. According to him, this property was allotted to him in the partition suit and hence he is in possession and enjoyment of the same. Surprisingly, the defendant would also project a Settlement Deed said to have been executed by Ramasamy Gounder in his name for the very same schedule mentioned property.