VENKATASAMI Vs. GOVINDA GOWDU

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment in A. S. No. 29/1996 on the file of the Subordinate Judge, Hosur, by the plaintiff in O. S. No. 359/1980 on the file of the Court of District Munsif, Hosur, who has got decree in his favour before the trial Court and subsequently lost his case in the appeal preferred by the defendants 1 and 2 before the first appellate Court.

(2.) THE suit was filed for declaration of the plaintiff's possessory right in respect of the suit property and also for delivery of possession from the defendants and for mesne profit. The averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows: the suit property belong to one Ellapa Chetty of Beerje Pallim, who had three sons. The suit property is a highways poramboke bearing S. No. 539. The suit property comprises of a house and vacant site. The said house was constructed some 20 years back by Ellappa Chetty. The revenue department after collecting 2 cess have recognised the possession of the Ellappa Chetty in respect of the suit property. Apart from the house of Ellappa Chetty, the houses of Nasigan, Muniyappan and Maligachari are also stand in S. No. 539. At the time of partition of the property belonging to Ellappa Chetty the suit property was originally allotted to one Subramanian towards his share. Since the said Subramanian was residing at Bangalore, the suit property was looked after by his brother Sathiyanarayana Reddy. The said Subramanian had executed a sale deed in favour of the plaintiff on 8. 8. 1980 in respect of the suit property for a consideration of Rs. 1,000/ -. From on that date onwards the plaintiff is in possession and enjoyment of the plaint schedule property. The defendants have no right or title in respect of the suit property. The attempt made by the defendants to purchase the suit property ended futile. Hence, the defendants have developed a grudge against the plaintiff. The defendants are attempting to disturb the possession of the plaintiff over the plaint schedule property. The first defendant with the grosser of defendants 2 and 3, trespassed into the suit property in the year 1981 at the time when the plaintiff was away from the suit property. The second defendant has trespassed into the front portion of the house in the suit property and the third defendant has trespassed into the back portion of the suit property. Inspite of several panchayats took place between the parties, the defendants have refused to vacate and handover the possession of the suit property. Hence, the plaintiff has impleaded defendants 2 and 3 in the array of parties. Hence, the suit.

(3.) THE defendants 2 and 3 remained exparte. The first defendant in his written statement would contend that the house in the suit property is a common house. Neither the vendor of the plaintiff nor the plaintiff had any exclusive right in respect of the said house. Ellapa Chetty has not constructed the suit house and he was never in possession and enjoyment of the said house and under the sale deed cannot claim any right in respect of the suit property. The vendor of the plaintiff had no right of his own to convey the same in favour of the plaintiff. The said sale deed is a concocted document. Since the suit property is a road poramboke, the plaintiff cannot claim any right in respect of the suit property. For the convenience of the public the defendants have constructed a shed near the suit property some 15 years back. The said shed was used by the defendants and those who do not have any house used to dwell in the said shed. The suit property is still with the possession of the defendants. The suit property is being used by the public as a 'rest house'. After obtaining an order of interim injunction the plaintiff is making all attempts to enter into the plaint schedule property. Only to grab at the plaint schedule property the plaintiff has filed this vexatious suit. The plaintiff has examined P. W. 1 to P. W. 4 and exhibited Ex. A. 1 to A. 4. On the side of the defendants D. W. 1 and D. w. 2 were examined and Ex. B. 1 and Ex. B. 2 were marked. A Commissioner was appointed by the trial Court, who had filed Ex. C. 1-report and Ex. C. 2-plan.