M ADHIMOOLAM Vs. R JANAKIBAI

JUDGEMENT

(1.) THE second appeal has been preferred by one Adhimoolam, the defendant in O. S. No. 384 of 1986 on the file of the District Munsif Court, Arakkonam, against the judgment and decree passed by the Sub Judge, Ranipet in A. S. No. 104 of 1992 in which the Sub Judge, Ranipet has decreed the suit after setting aside the judgment and decree of dismissal of O. S. No. 384 of 1986 passed by the District Munsif, Arakkonam.

(2.) THE plaintiff in OS. No. 384 of 1986 viz. , one Janakibai filed the said suit for the reliefs of declaration and permanent injunction in the alternative for recovery of possession in respect of the suit property of 35 cents in Survey No. 285/1a as indicated in the plaint plan as "abcd" at Ashok Nagar, Arakkonam. The allegations in support of the said suit, in brief, are to the effect that an extent of 3 acre 95 cents in Survey No. 285/1a originally belonged to one Rajendra Giri Goshai and he settled the said property in favour of his brother Ramagiri Goshai's sons viz. , Yeshwanthagiri, Narasimma Giri and Govardhana Giri and daughter Venubai under a registered settlement deed dated 11. 9. 1967 and delivered possession to them and that those four settlees were minors at that time and so, they were represented by their father Ramagiri Goshai and he obtained delivery of possession by accepting the settlement deed on their behalf and that the said Ramagiri Goshai died on 30. 3. 1973 and that one of the settlees viz. , minor Govardhana Giri also died in the year 1971 and that consequently, the plaintiff, being the mother of the settlees became the sole legal heir and succeeded to the share of the said Govardhana Giri and that thereafter in the year 1992, the remaining settlees viz. , Yeshwanthagiri, Narasimha Giri and Venubai divided the property by oral partition and after such partition, Yeshwanthagiri sold his entire share of one acre to one Thilagavathy and Dhandapani as northern and southern half share (50 cents each) by way of sale deeds dated 18. 8. 1982. Further, after such execution of sale deeds, Yeshwanthagiri has no property and that the plaintiff alone is enjoying 95 cents allotted to the deceased Govardhana Giri and the plaint schedule property viz. , 35 cents of extent forms part of the total 95 cents and that the other settlees viz. , Narasimma Giri and Venubai are also alienating their shares of property in their own right. Whileso, the defendant is attempting to interfere with the plaintiff's possession and enjoyment of the plaint schedule property of 35 cents alleging that he has interest upon the same by way of purchase from Yeshwanthagiri, who, in turn, had no right to sell any property and that the alleged sale deed in favour of the defendant is not true, valid and binding upon the plaintiff. That is why the plaintiff happened to file the suit for the reliefs of declaration and permanent injunction in the alternative for recovery of possession.

(3.) THE said suit was resisted by the defendant viz. , Adhimoolam with material allegations to the effect that 35 cents as shown in the plaint plan is not correct as if it forms part of entire 95 cents and that the allegation as if Yeshwanthagiri is not the legal heir of the deceased Govardhana Giri and thereby the defendant cannot claim any right upon the suit property through purchase is not correct. In fact, the four settlees, as per the settlement deed executed by Rajendra Giri Goshai, had share each in the total extent of 3 acre 95 cents and immediately after the said settlement deed, the settled land was divided among the four settlees and the portions allotted to each have been clearly indicated in the plan filed along with the written statement and that thereafter, since Govardhana Giri died in the year 1971, his share of 95 cents as shown in the plan filed along with the written statement also was divided among the remaining three settlees at the instance of their parents viz. , Ramagiri Goshai and the plaintiff herein and that in that partition 35 cents as shown in the plan attached with the written statement as "aelp" was allotted to the share of Yeshwanthagiri and 30 cents each to Narasimma Giri and Venubai as shown in the plan were allotted and that the plaintiff being the mother was never in possession and enjoyment of any portion of the land out of 95 cents or upon the entire 3 acre 95 cents. Further, the said Yeshwanthagiri had perfected his title also by adverse possession in respect of 35 cents through enjoyment for more than statutory period. Under the said circumstances, the said Yeshwanthagiri sold 35 cents with specific boundaries to the defendant for valuable consideration as per the registered sale deed dated 23. 6. 1983 and also delivered possession to the defendant and that eversince the purchase, the defendant is in absolute possession and enjoyment of 35 cents to the knowledge of the plaintiff. In fact, the entire extent of 10. 45 acres covered by Survey No. 285/1a was in joint patta No. 372 and after the defendant's purchase, his name was also included in the said patta No. 372 and then resurvey was made under Town Survey Scheme by Arakkonam Municipality and in that resurvey, 35 cents purchased by the defendant was sub-divided as Town Survey No. 7/1b in Block No. 2 in Ward No. A of Arakkonam Municipality and patta for the said extent of 35 cents was transferred in the name of the defendant as Patta No. 546. So, the plaintiff has no manner of right or interest upon the extent of 35 cents purchased by the defendant. Whileso, the plaintiff and her another son requested the defendant to exchange this 35 cents for the purpose of getting access to the newly formed road on the north of 35 cents and since the defendant refused to have exchange, the plaintiff has chosen to file the suit with false allegations to harass the defendant to coerce him to come to compromise. In any event, the settlees viz. , Narasimma Giri and Venubai and the vendor of the defendant Yeshwanthagiri are necessary parties to the suit and so, it is bad for non joinder of necessary parties. Further, the court fee should have been paid on the actual market value of the suit property and thereby the court fee paid also is not correct. Therefore, the suit is liable to be dismissed.