L BASHYAM Vs. B MUTHULAKSHMI

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and Judgment in A. S. No. 226 of 1995 on the file of the VI Additional Judge, City Civil Court, Chennai. The defendant, who has lost his defence before the Court below is the appellant herein. The suit is filed by the plaintiff for recovery of possession of the plaint schedule property which is 600 sq ft in Door No. 16 comprised in R. S. No. 1872/1 in Ranganathapuram Street, Mylapore.

(2.) THE averments in the plaint for the purpose of deciding this appeal sans irrelevant particulars are as follows: the plaint schedule property belongs to the plaintiffs. The Door No. 18 (old NO. 12/1) in Ranganathapuram Street, Mylapore, also belongs to the plaintiffs. The first plaintiff was residing with the defendant in Door NO. 18 Ranganathapuram Street, Mylapore, Chennai-4. In the year 1977 the first plaintiff permitted the defendant to occupy a room situated in Door NO. 16, Ranganathapuram Street, Mylapore, which is adjacent to Door No. 18. The said room measures about 6 feet x 10 feet with an extent of 60 sq ft with a zinc sheet roofing. The said room was attached to the superstructure in Door No. 18, Rnaganathapuram Street, Mylapore, Chennai-4. On 9. 3. 1970 the first defendant has executed a settlement deed in favour of the defendant in respect of Door No. 18, Ranganathapuram Street, Mylapore. The said settlement deed was obtained by the defendant when the first plaintiff was under the influence of alchol, misrepresenting him that it was a power of attorney and the said matter is the subject matter of a separate legal proceedings. In or around 1978 the first plaintiff left the defendant and joined with his son's family viz. the plaintiffs 2 to 10 and also requested the defendant to vacate and deliver vacant possession of the room referred to above in the suit property. The defendant failed to comply with demand inspite of the repeated remainders inclusive of letter dated 18. 1. 1985. The room in occupation of the defendant is capable of fetching a rent of Rs. 150/- per month and the plaintiffs claim as damages for use and occupation only a sum of Rs. 60/- per month for three years preceeding the date of plaint. The damages for use and occupation for the period from 20. 12. 1982 to 20. 12. 1985 comes to Rs. 2,160/ -. Hence, the suit.

(3.) THE defendant has filed his written statement contending as follows: the house and ground bearing No. 16, Ranganathapuram Street, Mylapore, Chennai, belongs to the plaintiffs and house and ground bearing No. 18 was settled absolutely in favour of the defendant by the plaintiff and the property is absolutely in the possession and enjoyment of the defendant ever since the settlement. The said property was settled on the defendant by the plaintiff on 9. 3. 1970 and there is another release deed dated 27. 3. 1975 which was executed by the first plaintiff in favour of the defendant transferring his right to collect rents. The first plaintiff has lost all his rights in respect of the property in respect of door No. 18, Ranganathapuram Street, Mylapore. The defendant is residing in door No. 18, Ranganathapuram Street, for the past more than 20 years. Therefore, the defendant was not in occupation of the alleged room situated at door No. 16, Ranganathapuram Street, Mylapore. Therefore, the question of the plaintiff having permitted the defendant to occupy a room in No. 16, Ranganathapuram Street in the year 1977. There is no such room measuring 6 feet x 10 feet with tiled roofing attached to the superstructure in door No. 18, Ranganathapuram Street, Mylapore. The settlement deed dated 9. 3. 1970 will conclusively prove the right and title of the defendant in respect of door No. 18. The defendant is a foster son of the first plaintiff and he is not in occupation of the plaintiffs' property much less the suit property. The defendant has not received any letter dated 18. 1. 1985 calling upon the defendant to quit and deliver vacant possession. The suit is not maintainable since he has also bequeathed the property to his grand children. Only at the instance of his grand children the suit has been filed by the first plaintiff. The plaintiffs have filed O. S. No. 7897 of 1978 and A. S. No. 243 of 1985 and the same were ended in favour of the defendant. Only to harass this defendant the present suit has been filed by the plaintiffs. There is no such suit property as described in the plaint schedule. The defendant is not in occupation of the plaintiff's property much less the suit property. There is no question of the defendant paying any damages. The present suit is vexatious in nature because after the dismissal of A. S. No. 243/1985 on 30. 9. 1985 this suit has been filed by the plaintiffs. Hence, the suit is liable to be dismissed.