ANTHONISWAMI PADAYACHI Vs. KUPPUSWAMI PADAYACHI

JUDGEMENT

(1.) The Defendant, who failed in both the courts below, is the Appellant. The suit was for declaration of the Respondent's title to the suit property and for a permanent injunction restraining the Appellant from interfering with his possession and enjoyment of the property, or in the alternative, for possession of the suit property, which is the southern 18 1/2 cents out of the 37 cents comprised in R.S. No. 138/1 of Ammeri village.

(2.) The Respondent's case was that the suit property and 43 cents of land comprised in R.S. No. 138/3 belonged to one Kulls Padayachi, and both of them were settled by him on Anjalai and Varnamayil, the grand daughters of his brother and daughters of one Kesava Padayachi, during their minority by exhibit A -21, dated 20th December 1943. Anjalai became exclusively entitled to those properties on the death of the other settlee Varnamayil, unmarried, and she sold them to the Respondent under exhibit A -2, dated 6th July 1959 in which the survey number and extent of the suit property are mentioned as R.S. No. 127/1 and southern 66 cents out of 1 acre 16 cents respectively by mistake. The southern 66 cents out of 1 acre 16 cents comprised in R.S. No. 127/1 belongs to Govinda Padayachi, Thoppayya Padayachi, Ammakannammal and Babu Ammal. The Respondent's predecessor -in -title Anjalai did not own any other property in Ammeri Village apart from the suit property and 43 cents comprised in R.S. No. 138/3. The Respondent and his predecessor -in -title were in possession of the suit property for over 12 years before suit and have completed their title by prescription. Taking advantage of the said mistake in the sale deed regarding the survey number and extent, the Appellant began to claim the suit property as his own and had commenced proceedings under Sec. 145 of the Code of Criminal Procedure before the Executive First Class Magistrate, Vridhachalam. The Respondent, therefore, filed the suit for the aforesaid reliefs.

(3.) The defence was that Varnamayil left Anjalai and her father Kesava Padayachi as her heirs and that the Respondent could have purchased only Anjalai's half share in the property and not the entire property. The Appellant denied that the respondent and his predecessor -in -title had title to the suit property or were in possession thereof at any time and contended that the respondent was not entitled to the declaration and injunction or the alternative relief of possession and that the Appellant and his predecessor -in -title have acquired title to the suit property by prescription and that the Respondent should have paid the necessary Court -fee and prayed for rectification of the sale deed, in view of the admission that the survey number and extent are given wrongly in the sale deed relied upon by the Respondent as his document of title.