CHANDRAN PADAYACHI Vs. T V VENKATASUBRAMANYA VADYAR

JUDGEMENT

(1.) THE third defendant in O. S. No. 406 of 1971 on the file of the District munsif, Valangiman at Kumbakonam, is the appellant herein.

(2.) ONE Kamakshiammal and her son, the first respondent herein, filed the suit for recovery of possession of the suit properties, along with mesne profits against defendants 1 to 4. Their case is that the suit properties comprising 8 cents in R. S. 459/2 and 26 cents in R. S. 460/5 in Thiruvisanallur originally belonged to the family of one Subbier, that as they were, adjacent and contiguous to his land, the first respondent purchased the undivided half share of Narayanaswami Iyer, a member of Subbier's family under a sale deed dated 5-3-1959, that by another sale deed he purchased 1/4th share therein along with other properties on 30-3-1959 and 22-5-1959 from two other sharers for his benefit benami in the name of the first defendant on the representation of the first defendant that if the sale deed is taken on his name he will be able to recover possession from the lessee one Sellur Natesa Padayachi and that on the same representation the first respondent also executed a sham and nominal sale deed dated 30-3-1959 in respect of the half share purchased by him from narayanaswami Iyer under the earlier sale deed dated 5-3-1959 and that the first defendant was thus made the ostensible owner of the suit items. The plaintiff's further case is that to recover possession of the suit property from sellur Natesa Padayachi the second plaintiff filed a suit, O. S. No. 162 of 1959 on the file of the District Munsif. Valangiman, in the name of the first defendant, for recovery of possession, but the said suit was, however, withdrawn with liberty to file a fresh suit. He later filed O. S. 266 of 1961, which was resisted by the tenant Natesa but it was however decreed for possession. Against the said decree, the said Natesa filed A. S. 96 of 1962 which was allowed. The first defendant in the meanwhile took possession of the properties from Natesa and gave it to the plaintiffs. But since he later took forcible possession from the plaintiffs of the suit properties claiming to be the real owner of the properties, the first respondent herein filed O. S. 388 of 1962 on the file of the same court for a declaration that the first defendant was only a benamidar for the plaintiffs and also for recovery of possession of the suit items from the first defendant and the said suit was decreed on 4-4-1964, upholding the plaintiffs' title and directing the first defendant to deliver possession of the suit properties. In the meanwhile the first defendant had preferred a second appeal S. A. 1266 of 1963 against the decision in A. S. 98 of 1962 before this court which was, however, dismissed on 30-3-1969. In the said second appeal, the plaintiffs wanted to implead themselves on record on the ground that there was collusion between the appellants and the respondents therein but the same was not permitted. as against the decree in O. S. 388 of 1962 in favour of the first respondent the first defendant preferred A. S. 64 of 1964 and then S. A. 876 of 1965 on the file of this court both of which were, however, dismissed. The plaintiffs are, therefore, entitled to recover possession of the suit properties from defendants 3 and 4 who are the grandsons of Sellur Natesa.

(3.) THE first defendant and his son the second defendants remained ex parte.