MOHANASAMY MUDALI Vs. MANINATHA MUDALI

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 102 of 1995 on the file of the Court of Subordinate Judge, Kancheepuram. The defendant in O. S. No. 225 of 1985 who has succeeded his defence before the trial Court, but lost in the appeal preferred by the plaintiff in A. S. No. 102 of 1995 is the appellant herein.

(2.) THE averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows: the suit is for declaration of plaintiff's right and title in respect of plaint "b" schedule property which measures 6' east to west 153' north to south in Kalampakkam Village. "b"schedule property is the part of plaint "a"schedule property which measures east to west 29' and north to south 153'. The plaintiff has also asked for the relief of delivery of vacant possession in respect of "c"schedule property which measures 6' east to west and 58' north to south in plaint "b"schedule property and also for permanent injunction in respect of "d" schedule property which is the remaining part of "c"schedule property in "b"schedule property. Plaint "a"schedule property measuring 14> ' east to west and 153' north to south was owned and possessed by three sharers viz. , Velayudha, Vaidhyalinga and Pachaiyappa. The plaintiff's grand father Shri Kanjamalai Mudaliar had purchased plaint "a" schedule property on 25. 7. 1900 from Veerasami Mudaliar and Rathna Mudali, the sons of Pachaiyappa in respect of their 1/3rd share of their property on the east. Kanjamalai Mudali purchased the 1/3rd share of Vaidhyalinga from his sons, Ayyaswami Mudaliar, Sabapathi Mudali two parts on two occassions. On 30. 12. 1905, he purchased the eastern part 7 = 'east to west and 153' north to south from Ayyaswami and Sabapathi for valid consideration of Rs. 17. 50 and was in possession and enjoyment of the said property from the date of the said sale dated 11. 9. 1907. Kanjamalai and his descendants presently the plaintiff were in possession and enjoyment of the plaint "a"schedule property and from the date of purchase of "a"schedule property, the plaintiff and predecessors-in-title were in possession and enjoyment of the "a"schedule property. They have also prescribed right and title by way of adverse possessi on also. At the time of execution of the said sale deed , the northern boundary of the "a"schedule property was main street. The plaintiff has constructed a house marked as 'abcd' in the rough plan on the 1/3rd share purchased from Veerasami and Rathina Mudali and a portion in the said property purchased from Sabapathi Mudaliar. It measures east to west 23' and north to south 48'. The open space behind and the space measuring about 6 ' east to west shown as 'gaje' in the rough plan which is "b"schedule property to the plaint schedule property. On the west of the plaintiff's property, the plaintiff's house was left vacant by the plaintiff for the purpose of storing agricultural products and also for stay of cattle and also for ingress and egrees from the street on the northern side. Some five or six years ago, the plaintiff was away from the village and when he was admitted in the hospital for 2 or 3 months, the defendant encroached into a portion of "b"schedule property shown as 'gahj' in the rough sketch fully described in the "c"schedule property and put up superstructure. The defendant also interfered with the plaintiff's peaceful possession and enjoyment of the another portion of "b:schedule property which "d'schedule property to the plaint schedule. The plaintiff has issued a suit notice on 23. 5. 1985. The defendant has sent a reply containing untenable contentions. Hence the suit.

(3.) THE defendant in his written statement would contend that some 40 years ago, the plaintiff's father constructed a house marked as "abcd" in the plaint rough plan measuring 22 =' and not 23 ' east to west and about 48' north to south from Nadu Street and the vacant site shown as 'cdjef' in the plaint rough plan. The plaintiff is not entitled to the land shown as 'aghiejd' in the rough plan. The plaintiff's father or his predecessors-in-title never enjoyed it. Hence the question of their perfecting right and title to it by adverse possession does not arise at all. The defendant's grand father purchased the vacant house site west of the plaintiff's house and vacant site shown as 'adje' mesuring east to west 22 =' and north to south 157' from one Anna Pachaiyappa Mudaliar for Rs. 45/- on 2. 6. 1919. The defendant's father was using the above said vacant site west of 'adje' shown in the plaint rough plan, by putting up cattle shed and hayrick. In the family partition on or about 1972, the defendant got the aforesaid vacant site covered under the aforesaid sale deed dated 2. 6. 1919 towards his share and thereafter when the cattle shed fell down, the defendant constructed a terraced house in the year 1976 and in that house, the defendant has put up separate eastern wall abutting the western wall of the plaintiff's house between the points 'ad' shown in the plaint rough plan. The plaintiff's said western wall was constructed only to the length of about 48' but the defendant constructed his house on the west of eastern wall to a length of more than 62' ie. , beyond 48' north of the of the plaintiff's western wall in 1976 itself. The plaintiff did not raise any objection at that time because he has no right over the site west of his house vacant site'adje' shown in the rough plan. Now the plaintiff is raising objection falsely claiming title to the vacant space shown as 'aghiejd'. The defendant has already constructed his aforesaid house as early as 1976 itself. So the plaintiff is now estopped from claiming the said vacant site. The defenant and his predecessors-in-title have perfected their right and interest to the house site shown as 'aghiejd' in the plaint rough plan by adverse possession as they have been in exclusive continuous and uninterrupted possession and enjoyment of it openly to the knowledge of the plaintiff and his predecessors-in-title for more than 12 years. There was no pathway or passage of 6' east to west as falsely shown as 'gaie' in the rough plan. The averment in the plaint that when the plaintiff has admitted in the hospital for about 5 or 6 years ago,the defendant encroached into a part of the plaint"b"schedule property shown as "c'schedule in the plaint and put up structure and that he attempted to interfere with the plaintiff's possession of the plaint 'd'schedule property are all false and all are invented for the purpose of filing this suit. A portion shown as 'aghiejd' in the rough plan absolutely belongs to the defendant. The defendant has not encroached into plaint "c' schedule property. For the notice dated 23. 3. 1985, the defendant has sent a reply dated 2. 4. 1985. The plaintiff has no right over the portion shown as ' AGHIEJD' in the rough plan. Hence the suit is liable to be dismissed.