LAWS(MAD)-1974-3-21

HUSSAIN UDUMAN Vs. VENKATACHALA MUDALIAR

Decided On March 07, 1974
Hussain Uduman Appellant
V/S
Venkatachala Mudaliar Respondents

JUDGEMENT

(1.) THIS Letters Patent Appeal which is directed against the second appellate judgment of V. Ramaswami, J. arises under the following circumstances : Survey No. 60/1, which is the subject -matter of this appeal, and certain other properties originally belonged to two brothers, Viswanatha Chettiar and Palaniandi Chettiar. Viswanatha Chettiar died on 18 -2 -1918. Sometime before his death, he executed a partition deed and a will whereby he bequeathed the suit property and other properties to his wife, Gomathiammal. After his death, disputes arose between Gomathiammal and Palaniandi Chettiar. Thereupon, Gomathiammal instituted two suits in the District Munsif Court, Tirunelveli, for enforcement of the partition deed and the will and for direction to register the same. On 6 -11 -1920 under Ex. A.1, both the suits were compromised by the parties, and a decree was granted in terms thereof. Under the terms of the decree, Gomathiammal was to enjoy the suit property and certain other properties for life and after her death, these properties were to go to Palaniandi Chettiar and his heirs. One Velayutham Pillai and Ramiah Pillai obtained a decree against Palaniandi Chettiar in S. C. 564 of 1934 and in execution thereof brought to sale the vested remainder that Palaniandi Chettiar had in the suit property, purchased the same and obtained symbolic delivery of possession. The plaintiff purchased this right from the court auction purchasers on 29 -11 -1954. Gomathiammal herself died on 8 -8 -1964. According to the plaintiff, on her death, he, as the holder of the vested remainder, became entitled to the suit property. The plaintiff's case was that by some arrangement with Gomathiammal, the father of defendants 1 to 12 got possession of item i (S. No. 60/1) and was in enjoyment of the same till his death, and after his death, his heirs (defendants 1 to 12) have been in possession of item 1. Defendants 1 to 12 when called upon by the plaintiffs to surrender possession, refused to do so. Consequently, the plaintiff filed the suit for recovery of possession.

(2.) DEFENDANTS 1 to 12, who were the children of Mohammed Hanifa Tharaganar, contended that as per the compormise decree, Gomathiammal was given S. No. 30/3 and S. No. 70/6, that she was in enjoyment of those items, but by mistake the survey number of item 1 was wrongly mentioned in the compromise decree as S. No. 60/1 instead of as S. No. 30/3 and this mistake was reiterated in the subsequent documents. Likewise, what was sold in execution of the decree against Palaniandi Chettiar was also wrongly described as S. No. 60/1 and therefore, the plaintiff had no right in respect of item 1 of the plaint schedule. These defendants also pleaded that they had been in possession of S. No. 60/1 and that in any case they have prescribed title to the property by adverse possession.

(3.) ON appeal by the plaintiff, the Subordinate Judge, Tirunelveli, held that there was no mistake in the description of the survey number in the compromise decree or in the subsequent documents, and on this view decreed the suit as prayed for in respect of item 1 as well.