FATHIMA BEEVI Vs. M RAMALINGAM DECEASED

JUDGEMENT

(1.) THE second appeal is directed against the judgment and decree of the learned District Judge, Ramanathapuram dated 28.07.1994 made in A.S.No.44 of 1993 confirming the judgment and decree of the learned District Munsif, Ramanathapuram dated 15.04.1993 made in O.S.No.43 of 1990. THE plaintiff in the suit who proved to be unsuccessful before both the Courts below is the appellant in the present second appeal.

(2.) THE appellant herein had filed the original suit initially for declaration and injunction. Subsequently the plaint was amended and a prayer for declaration and recovery of possession was introduced as an alternate relief. According to plaint averments, the suit property measuring an extent of 1.35 acres, forming the northern part of survey number 110 in Thiruppalakkkudi village, Thiruvadani Taluk, Ramanathapuram District originally belonged to one Muthu THEvan @ Muniyandi THEvar. THE said Muthu THEvan @ Muniyandi THEvar sold it to Mohammed Seithakkadhi Rawther under a registered sale deed dated 16.10.1923. After the death of the said Mohammed Saithakkadhi Rawther, his sons Hameed Ibrahim and Mohammed Ismail sold it to Hayadhudheen, the father of the appellant/plaintiff under a sale deed dated 24.12.1968 and the appellant/plaintiff got the suit property as gift under a gift settlement deed dated 24.10.1985 from her father. Contending that the respondents 1 and 2/defendants 1 and 2, who did not have any title or right in respect of the suit property, were making attempts to trespass into the same, the appellant/plaintiff had initially prayed for the relief of declaration and injunction. Contending further that the respondents 1 and 2/defendants at last succeeded in their attempt during the pendency of the suit, the appellant/plaintiff amended the prayer part of the plaint seeking declaration and injunction and in the alternative for declaration and recovery of possession.

(3.) THE trial Court framed necessary issues and conducted trial in which two witnesses were examined as PW1 and PW2 and Ex.A1 to E19 were marked on the side of the plaintiff. On the side of the defendants, two witnesses were examined as DW1 and DW2 and Ex.B1 to B13 were marked. THE report, plan and additional report submitted by the advocate-commissioner were marked as Exs.C1, C2 and C3 respectively. At the conclusion of trial, the learned District Munsif heard the arguments advance on either side, considered the pleading and evidence in the light of the arguments advanced and, upon such consideration, held that the appellant/plaintiff was not entitled to any one of the reliefs sought for in the plaint. Consequently, the suit was dismissed by the trial Court. THE appeal A.S.No.44 of 1993 filed by the plaintiff on the file of the lower appellate court (District Court, Ramanathapuram) was also dismissed confirming the judgment and decree of the trial Court. Hence, the present second appeal was filed by the appellant/plaintiff against the respondents 1 and 2/defendants. During the pendency of the second appeal the first respondent/first defendant passed away and respondents 3 to 9 were impleaded as the legal representatives of the deceased first respondent.