K S CHIDAMBARAM Vs. GOMATHI AMMAL

JUDGEMENT

(1.) THE above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, THEnkasi, dated 30.11.1982 in A.S. No.26 of 1982, confirming the judgment and decree of the learned District Munsif, Ambasamudram, dated 30.12.1981 in O.S. No.307 of 1986. THE wife of late Arumugham by name Muppidathi Ammal, first plaintiff, filed O.S. No.307 of 1976 and when she died during the pendency of the suit, plaintiffs 2 to 5, her legal representatives came to be impleaded to prosecute the proceedings instituted for declaration that the second schedule property shown as ABHG in the plaint plan belonged to the first plaintiff and other heirs of the deceased Arumugham and for recovery of possession of III Schedule ABFE ground site after removing the construction made by the defendant.

(2.) THE case of the plaintiffs was that the I schedule property shown as AXYZFB, belonged to the defendant and the II schedule shown as ABCD belonged to the plaintiffs as heirs of late Arumugham, that ABHG in the said second schedule is the III schedule, that there is a lane situated on the eastern side of the plaintiffs" house to reach the HI schedule property which is shown as KHML and that the defendant has no right or title over the II schedule property. THE defendant had constructed a house in ABFE and inspire of objections, constructed a wall near EF and put up two windows. THE defendant also sent a notice to the husband of the first plaintiff on 19.6.1976 marked as Ex.A-5 claiming rights and objecting to the claims of the first plaintiff" s husband. After notice, first plaintiff" s husband was murdered and reply was sent by the heirs of Arumugham on 5.7.1976 to the notice dated 19.6.1976.

(3.) APART from the oral and documentary evidence adduced, there were two reports of the Commissioner and plans marked as materials on record. After considering the materials placed, the learned trial Judge by his judgment and decree dated 30.12.1981 decreed the suit as prayed for. The plea of estoppel urged by the defendant did not find acceptance with the trial court which held that as the owners of the property and having regard to the declaration of title granted, the plaintiffs are titled to recover possession. Aggrieved, the defendant-appellant herein pursued the matter before Sub Court, Thenkasi, in A.S. No.26 of 1982. The learned first appellate Judge also agreed with the reasons and findings recorded by the trial court and dismissed the appeal. Hence, the above second appeal.