A P SAGAR Vs. GOVINDASWAMI GRAMANI

JUDGEMENT

(1.) THE unsuccessful defendants in O. S. No. 268 of 1987 on the file of the First Additional Subordinate Judge, Pondicherry , are the appellants in this second appeal.

(2.) THE case of the plaintiff/ respondent in short is as follows: THE respondent is the owner of'a','b' and'c portions of the suit schedule property. THE said property is the ancestral property of the respondent. Under the registered lease deed Ex. A-1 dated 13. 11. 1967, the respondent had leased out portion'a'of the suit property to one Pavadai Naicker, the father of the appellants/defendants. On the same day, he had leased out the remaining portions of the suit property in favour of one Sinna Ponnu, sister of Pavadai Naicker under Ex. A-2 lease deed. THE said Sinna Ponnu had vacated and handed over possession of'b' and'c portions of the suit property to the respondent. However, Pavadai naicker continued to keep portion'a'of the suit property and was paying rent to the respondent. Pavadai Naicker died in the year 1968. After his death, the appellants, who are his sons, refused to pay rent to the respondent and claimed ownership to the entire suit property. THE 1 st appellant, in support of his claim of title to the suit property, collusively filed O. S. No. 546 of 1984 on the file of the First Additional Sub Judge, pondicherry, against appellants 2 and 3 behind the back of the respondent herein, praying for partition and separate possession of the suit properties. THE plaint was presented on 12. 11. 1984 and taken on file on 17. 11. 1984. A preliminary decree was passed in O. S. No. 546of 1984 on 18. 12. 1984 within a month's time from the date of suit. Ex. A*-3 is the preliminary decree. A compromise memo was filed by the parties viz. , the appellants herein who are the plaintiff and defendants therein, and on the basis of the same, the First additional Sub Judge, Pondicherry, divided the property into three equal shares as shown in the plan and allotted each of the parties equally. THE compromise memo was signed on 13. 3. 1985. THE final decree passed by the First Additional sub Judge, Pondicherry, dated 13. 3. 1985 is marked as Ex. A-4. Pursuant to the final decree, the appellants had taken delivery of possession of their alleged shares through Court as per Exs. B-4 to B-9. Relying on the partition decree, the appellants have attempted to remove the fence put up by the respondent around portions'b'and'c of the suit property. THErefore, the respondent was constrained to file O. S. No. 268 of 1987 for the following reliefs: (a) To declare that the judgment and decree in O. S. No. 546 of 1984 on the file of the Sub Judge, Pondicherry, are null and void. (b) To declare that the plaintiff/ respondent is the absolute owner of the same and to recover possession. (c) For permanent injunction. (d) Costs of suit.

(3.) AS seen already, the respondent filed the suit against the appellants for declaration of his title to the suit property and for consequential relief of declaration in regard to the decree in O. S. No. 546 of 1984 on the file of the First Additional Sub Judge, Pondicherry, besides possession and injunction. The respondent, in proof of his title, relied on a document viz. , Ex. A-1 dated 13. 11. 1967 executed in his favour by one Pavadai naicker in the presence of a Notary. The execution of the said document was witnessed by two witnesses besides the writer. The case of the respondent was that the lessee under the document viz. , Pavadai Naicker was the father of the appellants. The respondent had also produced another document bearing the same date viz. , 13. 11. 1967, marked as Ex. A-2. This document covers another portion of the suit property.