R VELLINGIRI Vs. R KANNAIAN

JUDGEMENT

(1.) THE unsuccessful defendants 1 and 2 in O. S. No. 1024 of 2004 on the file of the First Additional District Munsif, coimbatore, are the appellants in the above second appeal. For the sake of convenience, the parties are referred to as per their ranking in the suit.

(2.) THE brief facts that are necessary for the disposal of the above second appeal are set-out below: the plaintiffs filed a suit for declaration and possession to declare that they are the absolute owners of the suit properties and for directing defendants 1 to 4 to deliver vacant possession of the suit property to the plaintiffs and for a further direction directing respondents 1 to 4 to pay future mesne profits. According to the plaintiffs, the first defendant is their brother; their father-Rangasamy Naidu took a vacant land on lease from s. P. Narasimmalu Naidu Trust, the fifth defendant, for ground rent and put up a super-structure thereon with his own funds; Rangasamy Naidu on his free will and violation, executed a Registered Will on 19. 08. 1988 bequeathing the suit property in favour of his wife-Ponnammal absolutely; ponnammal is the mother of the plaintiffs and the first defendant; in 1990, Rangaswamy Naidu died and Ponnammal became the absolute owner of the suit property; in or about 1994, the first defendant became a tenant of Ponnammal in respect of a portion of the suit property; the first defendant paid rents up to January 1997 irregularly and committed default from February 1997 and he also sublet the portions to defendants 3 and 4; the second defendant claims the property by virtue of a Will said to have been executed by Ponnammal in her favour in the year 1995, but the said will is not enforceable as the same should be treated as cancelled by the Registered Sale Deed executed by Ponnammal in favour of the plaintiffs on 30. 07. 1997 for a sale consideration of Rs. 65,000/-; from 30. 07. 1997 the plaintiffs have become the absolute owners of the suit property and paying ground rent to the fifth defendant-trust; the plaintiffs filed RCOP No. 6 of 1998 on the file of the District Munsif and Rent Controller, Coimbatore, for eviction against the first defendant and the sub-tenants from the property; the defendants took up a plea that by virtue of the Will executed by Ponnammal in favour of the second defendant the defendants are entitled to remain in possession and they are not tenants; by an order dated 31. 01. 2001 passed in RCOP No. 6 of 1998 the Rent Controller held that since title is in dispute between the plaintiffs and the defendants the proper Forum to decide title is only the Civil Court and not the Rent Controller, hence the above suit.

(3.) DEFENDANTS 1 to 4 remained exparte and no written statement was filed; the fifth defendant alone contested the suit by filing a written statement; the fifth defendant admitted the tenancy in favour of Rangasamy Naidu and the factum of putting up the super-structure over the lease hold property by Rangasamy Naidu; the execution of the Will, dated 19. 02. 1988, by Rangasamy Naidu, has also been admitted by the fifth defendant; but it was contended by the fifth defendant that Rangasamy Naidu gave only life interest to ponnammal and after her demise, the property will go to the second defendant herein.