NATESAN Vs. CHINNACHI KANDAR

JUDGEMENT

(1.) Plaintiff is the appellant. He filed O.S. No. 120 of 1978 on the file of Subordinate Judge, Karur, for declaration declaring that the Plaintiff and Defendants 2 and 5 are the owners of the suit properties, for recovery of possession of the same from the first defendant, for re.covery of Rs. 9,000/- as past mesne profits and for recovery of future profits.

(2.) The case of the plaintiff as found in the plaint is as follows:- The plaintiff is the son of Karunchami Kandar, who died in the year 1974 leaving behind him the plaintiff and the Defendants 2 to 5 as his heirs. The second defendant is the mother of the plaintiff, while the Defendants 3 to 5 are brothers and sister of the plaintiff. The suit plaintiff originally belonged to one Thoppakkutti alias Nallachi Kandar, son of Nallachi Kandar. It was purchased by the plaintiff's father on 10-3-1930 for a sum of Rs. 1,000/- under Ex. A-1. The plaintiff's father was in possession of the property. Since the plaintiff's father had to leave for Ceylon, he leased out the property to Thoppakkutti alias Nallachi Kandar, viz., his vendor on an yearly rental of Rs. 170/-. The plaintiff's father had borrowed Rs. 300/- from Kangani Muthiah Kandar on 14-5-1932 and executed a simple mortgage deed, under Ex. A-3. As lessee Thoppakkutti alias Nallachi Kandar enjoyed the suit properties till 9-3-1935, the plaintiff's father borrowed a sum of Rs. 300/- on 8-3-1935 from Palaniyandi Gounder son of Ammasi Gounder and executed an usufructuary mortgage deed for a period of 3 years in his favour directing the mortgagee to discharge the simple mortgage deed dated 14-3-1932. The mortgagee was to enjoy the property in lieu of interest. The mortgagee Palaniyandi was in possession in pursuance of the mortgage, and he enjoyed the same till 10-3-l953. The plaintiff's father on 10-3-1953 redeemed the mortgage and leased out the same to one Emakutti Kandar, son of Thoppakkutti alias Nallachi Kandar for a period of 3 years on an annual rental of Rs. 240/-. Emakkutti Kandar was in possession of the property and enjoyed the same till 11-11-1953. Meanwhile, the plaintiff's father executed a power of attorney in favour of Rasaiah Kandar son of Kangani Muthiah for the purpose of collecting the rent from lessee Palaniyandi. Meanwhile Chinnachi Kandar son of Thoppakutti alias Nallachi Kandar claimed some right in the properties and therefore, the plaintiffs' father paid a sum of Rs. 200/ - through his power-of-attorney agent Rasaiah Kandar and obtained a release deed from him on 18-3-1953. The lessee Emakkutti Kandar surrendered possession to the power of attorney on 11-11-1953. On 11-11-1953 the power of attorney agent leased out the property to Muthu Kandar for three years. Muthu Kandar was in possession and enjoyment of the property for a period of three years and then surrendered possession to the power of attorney agent. Therefore, the power of attorney agent leased out the property to one Chinnachi Kandar, son of Thoppakkutti Kandar alias Nallachi Kandar for a yearly rental of Rs. 225/-. Chinnachi Kandar was in possession and enjoyment of the same till his death which took place about 3 years ago paying the rent to the power of attorney agent of the plaintiff's father. The lessee Chinnachi Kandar had been living with the first defendant till his death. The first defendant has been helping the lessee Chinnachi Kandar in the cultivation of the suit property. After the death of lessee Chinnachi Kandar, the first defendant got into the suit property claims to be the only heir and ever since he is in possession of the same. The plaintiff returned from Ceylon in July, 1977 and has settled at Periyappalipalayam. The plaintiff has been demanding the defendant to pay reasonable rent at the rate, of Rs. 3000/- for the years 1974-75, 75-76 and 1976-77. Since the first defendant has been evading, the plaintiff has issued a notice to him on 5-10-1977 calling upon him to pay the reasonable market rate. The first defendant sent a reply on 21-10-1977. The denial of title by the first defendant is false and untenable. The contention of the first defendant that he has been in possession and enjoyment of the suit property as full owner is false and untenable. The mere payment of kist and his name in the revenue records will not clothe him with any right over the suit properties. Since Defendants 2 to 5 are in Sri Lanka and are not available, when the plaintiff has instituted the suit, they are made pro forma defendants. With these averments the plaintiff prayed for a decree as claimed.

(3.) The first defendant filed a detailed written Statement wherein it is contended that the suit is not maintainable and it is barred by limitation as per the provisions of Act 17 of 1978. The defendant does not admit that the plaintiff is the son of Karunchami Kandar. It is also not true to say that the suit property was owned by one N allachi Kandar. The allegation that Karunchami Kandar had purchased the suit property on 10-3-1930 is denied. The plaintiff has no title to the suit property. Even if it is true, it cannot confer any right on the father of the plaintiff. The first defendant denies the allegations made in Paragraphs 7 to 19. The first defendant has been in possession and enjoyment of the property in his own right for more than a statutory period. He is paying kist for the suit property with patta in his name. He has raised paddy, sugarcane and other crops in and over the lands, and supplied sugarcane to the Cooperative Sugar Mills Ltd., Mohanur. The enjoyment of the suit properties by the defendant is known to everyone including the plaintiff. Thus the defendant has become the absolute owner of the suit lands by adverse possession. It is not true to say that the suit property originally belonged to Thoppakkutti alias Nallachi Kandar. The allegation that Chinnachi Kandar has released his right is not admitted. The very allegations would go to show that by and under the sale deed of the year 1930 the plaintiffs father can never get any right to the property. It is not true to say that the property was leased out to Chinnachi Kandar. It is not true to say that Chinnachi Kandar was in possession and enjoyment of the suit lands. The first defendant was never helping the said Chinnachi Kandar in the cultivation of the suit lands. The defendant is not the heir of the said Chinnachi Kandar. He never put forward any such claim. The defendant was not the lessee under the plaintiff's father. It is not true to say that the plaintiff made demands on the first defendant for rents. To the notice issued by the plaintiff, the defendant has sent a suitable reply. The suit is liable to be dismissed under the provisions of Act 17 of 1978. The defendant is not liable to pay any mesne profits. The plaintiff is not entitled to declaration or possession. With these averments, the first defendant prayed for dismissal of the suit.