K PALANIAPPA Vs. VALLIAMMAL

JUDGEMENT

(1.) This second appeal is filed by the defendant in O.S. No. 552 of 1976 on the file of the District Munsif, Erode, challenging the legality and correctness of the judgement and decree of the District Judge, Erode, passed in A.S. No. 106 of 1983.

(2.) The facts of the case are briefly as follows :- The respondent herein filed the suit O.S. No. 552 of 1976, on the file of the District Munsif Erode, against the appellant herein for possession of the suit property, payment of mesne profits and for costs. In the plaint the respondent herein alleged that her absolute title to the suit property has been declared by the Court in O.S. No. 883 of 1972, on the file of the District Munsif, Erode, in which the appellant herein was the defendant. The said suit was filed by the respondent for declaration of her title and for a permanent injunction restraining the appellant from interfering with her peaceful possession and the Court declared the rights of the respondent but negatived the claim of injunction since the appellant was found to be in possession of the property for the past two years before the judgement dt. 26-2-1974. There was an appeal against the said judgement in A.S. No. 70 of 1974 preferred by the appellant herein and the said appeal was dismissed. There was no second appeal against the same. It is alleged in the plaint in O.S. 552 of 1976 that the appellant had been in forcible possession of the suit property after dispossessing the respondent in or about 20-1-1972. The cause of action for the said suit, is said to have arisen on 20-1-1972 when the respondent was dispossessed.

(3.) In the written statement the appellant/defendant refuted the allegation that the respondent was dispossessed on 20-1-1972. It is also contended that the appellant is the absolute owner of the suit property and that the respondent is not entitled to any right in respect of the suit property as per the sale deed, dt. 3-8-1964. The appellant also contended that a second appeal had been filed against the judgement of the Subordinate Judge in A.S. No. 70 of 1974 and the same is pending. A contention also had been raised under O.2, R.2, C.P.C. that the suit is not maintainable.