KANNAIYAN Vs. MAYAVAN

JUDGEMENT

(1.) AGGRIEVED against the judgment and decree of the Sub Court, Chidambaram in A. S. No. 32 of 1991, the plaintiff Kannaiyan has filed this second appeal.

(2.) ORIGINALLY the plaintiff Kannaiyan filed the suit in O. S. No. 663 of 1986 on the file of the District Munsif Court, Chidambaram in respect of the suit properties viz. , 9-1/2 cents out of 18 cents covered by dry survey No. 123/17 (plaint schedule first item), 16-1/2 cents out of 50 cents covered by dry survey No. 126/8 (plaint schedule second item) at Thachakadu Village for the reliefs of declaration and permanent injunction against the defendants viz. , one Mayavan and Ramalingam. The said suit was filed with material allegations that the suit properties originally belonged to one Muthian absolutely and he alone was in possession and enjoyment of the suit properties having patta in his name and paying kist and that thereafter, the plaintiff Kannaiyan purchased the suit properties from the said Muthian as per the registered sale deed dated 9. 7. 1981 and that eversince of the purchase, the plaintiff is in possession and enjoyment of the suit properties. The defendants have no manner of right or title or possession upon the suit properties and they are attempting to interfere with the plaintiff's possession of the suit properties and that is why the plaintiff happened to file the said suit.

(3.) HOWEVER, the said suit was resisted by the defendants by filing written statement with material allegations that the defendants are not interested in respect of plaint schedule second item and they are interested only in respect of the first item and the first item viz. , 9-1/2 cents, a part of dry survey No. 123/17 and that the boundaries are not properly described in the plaint and the plaintiff has no title or possession upon the said 9-1/2 cents and that in fact Muthian possessed only 4-1/2 cents in this survey number and one Pachiammal wife of Raman usufructorily mortgaged the said 4-1/2 cents in the same survey number to Muthian on 2. 12. 1959 and Muthian in turn assigned the mortgage in favour of the plaintiff Kannian on 13. 7. 1964 and thereby it is wrong to state that Muthian owned 9-1/2 cents in this survey number and if at all he could have possessory title of 4-1/2 cents only and there cannot be any independent title. In fact, on 19. 9. 1965, Muthian got money from the first defendant and paid the same to the plaintiff for discharging the mortgage debt on 19. 9. 1965 and there is also endorsement of discharge and the discharged deed was handed over to the first defendant by the said Muthian. Muthian also assigned the bogyam deed to the first defendant with a promise to sell 4-1/2 cents to him. Further, the first defendant purchased 5 cents in this survey number from one Arayee Ammal and Ayyakannu Ammal on 17. 6. 1986 which was owned by them ancestrally. This 5 cents land is lying on the south of 4-1/2 cents possessed by Muthian and therefore, Muthian cannot have ownership for more than 4-1/2 cents. The Plaintiff might have obtained patta in his name and paid kist, but, that itself is not enough to confer title upon the plaintiff and consequently, the suit is liable to be dismissed.