GOVINDARAJULU NAIDU Vs. MOHAMED ISMAIL AND OTHERS

JUDGEMENT

(1.) The plaintiff is the appellant. He filed a suit before the learned District Munsif of Sirkali for recovery of possession of the suit property after removal of the superstructure thereon and for future profits or in the alternative for recovery of Rs. 662.75 from the fifth defendant with interest thereon at 6% per annum, contending that the suit property which is a site in R.S. No. 233/11 in Sembananiruppu Village, Sirkali, belonged to the fifth defendant Shanmugasundaram Pillai who sold it to him under a registered sale deed dated 4th January 1965, but defendants 1, 2 and 4 who are sawyers by profession trespassed into the house which was in the eastern portion of the property and which was in the possession of Madarsa, the father of the third defendant under a paghuti arrangement with Shanmugasundaram Pillai and which house after the death of Madarsa fell into ruins and remained unoccupied and vacant, that the entire property measuring 9 cents along with the dilapidated house was in the possession of Shanmugasundaram Pillai and the third defendant also trespassed into a portion of the property in the middle of April 1965 and put up a thatched shed and when the plaintiff asked them to vacate they did not do so and hence the plaintiff has been constrained to file this suit for recovery of possession of the property or in case the Court finds that the plaintiff's vendor had no title to the suit property or that defendant 1 to 4 had perfected their title to it by adverse possession, to award damages of Rs. 662 -75 from the fifth defendant, the said sum representing the sate price paid by the plaintiff to the fifth defendant and the value of stamp papers etc. The defendants 1 to 4 contended that they have been always in possession of the 9 cents which comprise the suit property; and they denied that Madarsa built a house or entered into a paguthi agreement with Shanmugasundaram Pillai and stated that Madarsa was not a tenant anyway and fifth defendant had no right to sell the property to the plaintiff and the sale to the plaintiff was invalid. They further contended that their family has always been living in the house, which was their ancestral house and neither the plaintiff nor his predecessor -in -title had any possession of the suit property and the sale by Shanmugasundaram Pillai in favour of the plaintiff was not valid. They further pleaded that if for any reason the Court held that they have failed to prove the plea of adverse possession, they would be entitled to the benefits of Madras Kudiyiruppu (Protection from eviction) Act, 1961.

(2.) The fifth defendant against whom the alternative relief was prayed for contended that be has been paying kist for the suit land and the patta stands in his name and originally the properties belonged to one Rajangam Pillai to whom the suit property fell in a family partition between him and his brothers and Madarsa was in permissive possession of the site and subsequently Rajangam Pillai sold the property to him, the fifth defendant under a sale deed dated 1st December, 1949 for valuable consideration and after he, the fifth defendant became entitled to the property, defendants 1 to 4 continued to be In permissive possession of the property under him and in the sale proclamation in E. P. 480/61 the suit property has been stated to belong to the fifth defendant and in E. A. 878/61 in the same proceedings Ahamedsa and 6 others who are she heirs of Madarsa have admitted his (fifth defendant's) title to the site.

(3.) The trial Court on an elaborate consideration of the evidence that was adduced by both sides found that the plaintiff had title to the property and that defendants 1 to 4 had not perfected title to the same by adverse possession. It also found that defendants 1 to 3 were agriculturists or agricultural labourers and are entitled to the benefits of the Madras Occupants of Kudiyiruppu Act 38 of 1961. In view of that finding he held that the plaintiff would be entitled only to the alternative relief prayed for against the fifth defendant, namely, for damages which comprised the sale price paid by the plaintiff to the fifth defendant, the value of stamp papers etc., and decreed the suit for a sum of Rs. 662 -75 with interest at 6% per annum thereon against the fifth defendant and dismissed the suit as against defendants 1 to 4.