CHINNU ALIAS PACHA GOUNDER Vs. PERIAKALIAMMAL ALIAS PONNAMMAL

JUDGEMENT

(1.) PLAINTIFFS, who are the sisters of the defendant, filed o. S. No. 266 of 1985 on the file of the District Munsif Court, Pollachi for declaring that they are the absolute owners of the suit properties described in the schedule with a consequential direction to the defendant to hand over possession of the suit properties to the plaintiffs within a specified time and in case of default, to permit the plaintiffs to take possession of the suit properties through the process of the Court.

(2.) THE averments made in the plaint by the plaintiffs, who are the respondents in the Second Appeal are as follows: THE suit properties, originally belonged to plaintiffs' mother by name Nachammal, under a sale deed dated 27. 11. 1937 and she was in possession and enjoyment of the suit properties till her life time. THE said nachammal (mother of the Plaintiffs and the defendant) died 40 years ago. Father of the plaintiffs and the defendant, by name Amaravathi Gounder also died in the year 1962. Hence, as per the law that existed prior to 1956, the plaintiffs being the daughters , have become entitled to the suit properties absolutely and the defendant who is their brother, was not entitled to any share in the suit properties. It is further stated that even though the defendant was not entitled to any share in the suit properties, as the defendant happened to be their brother, the plaintiffs permitted him to enjoy the suit properties along with them. It is further stated that the defendant, taking advantage of the said fact, started to behave indifferently and started to deny the right of the plaintiffs in the suit properties. For about a year prior to the suit, the defendant had been picking up quarrels with the plaintiffs frequently and thereafter, he demanded the plaintiffs to settle the properties in his favour. As the plaintiffs refused to oblige, the defendant started to show indifferent attitude. THEreafter, the plaintiffs demanded the defendant to hand over the suit properties to them. THE defendant refused to hand over possession of the suit properties despite mediation that took place about one year prior to filing of the suit. THErefore, the plaintiffs filed the suit with the aforesaid prayer.

(3.) THE following substantial questions of law were framed by this Court while admitting the Second Appeal. 1. Whether the present suit filed by the respondents viz. , the heirs of Nachammal, after about 40 years from the date of death of the said Nachammal, was not barred by limitation, especially when admittedly the appellant was not a heir of Nachammal and he was not entitled to inherit the estate of Nachammal, viz. , the suit properties along with the respondents and consequently his possession of the suit property for over 25 years prior to the date of suit was not as a co-sharer, but only as a trespasser ? 2. Whether the non-consideration of the entire oral evidence on record and non-consideration of the contents of the documentary evidence on record save making only a passing reference about the same by both the Courts below, would not amount to non-observance of the mandatory provisions of Order 41 Rule 31 C. P. C. , and consequently such non-consideration had not brought in serious infirmity in its judgments and vitiated them?