SAMUTHRAM @ SEMBULINGAM Vs. KADALRAJAN

JUDGEMENT

(1.) THE defendants in the original suit are the appellants in this second appeal. The plaintiffs in the original suit are the respondents herein. The respondents herein instituted the original suit O.S.No.181/1993 on the file of the Additional District Munsif, Srivilliputhur against the appellants herein for the relief of declaration and permanent injunction in respect of the suit property comprised in Survey No.935/1.

(2.) THE averments made in the plaint by the respondents herein can be briefly stated as follows: The suit property was purchased by Ganapathi Ammal, the mother of the plaintiffs from one Chinnasamy Nadar under a registered sale deed dated 09.03.1987 and was in possession and enjoyment of the same till 29.08.1988. On 29.08.1988 the said Ganapathi Ammal gifted the said property to the respondents/plaintiffs. The gift was accepted by the respondents and from the date of gift settlement deed, the suit property came to be exclusively possessed and enjoyed by the respondents herein. The vendor of Ganapathi Ammal had earlier purchased the said property from one Sakthivel Nadar, who got it in a partition that took place in his family. The vendor of Chinnasamy Nadar, namely Sakthivel Nadar is none other than the brother of the appellants/defendants. The defendants do not have any manner of right or title over the suit property. The appellants/defendants made a demand for payment of a lump sum and the said demand was turned down by the respondents/plaintiffs, pursuant to which, the appellants/defendants are trying to interfere with the respondents/ plaintiffs peaceful possession and enjoyment of the property. Thereby, they are trying to blackmail the respondents/plaintiffs. On 27.03.1993 and again on 29.03.1993, the appellants/defendants prevented the respondents/plaintiffs from putting up constructions in the suit property and hence the suit for declaration of their title and consequential permanent injunction in respect of the suit property.

(3.) THE case of the appellants/defendants, in brief, is as follows: There is no dispute regarding the first item of suit property. So far as the second item of suit property is concerned, the appellants/defendants accept the title of the respondents/plaintiffs to the plot measuring 33 feet east -west and 18 feet north -south. But in spite of restricting their claim to the above said measurement, the respondents/plaintiffs have made a claim that their property measures east -west 42 feet instead of 33 feet. Sakthivel Nadar is the first wifes son of Sundara Nadar, whereas the appellants/defendants are the sons of the above said Sundara Nadar through his second wife Rakkammal. After the death of Sundara Nadar, a partition of the family properties was effected between the above said Sakthivel Nadar on the one hand and the mother of the appellants/defendants on the other hand. In the said partition, 3/4th share was allotted to the appellants/defendants and 1/4th share in the family properties was allotted to the said Sakthivel Nadar as per the division made by the Panchayatdars on 09.08.1953. The terms of partition were reduced to writing by way of a "Kaithadi Baga Udanpadikkai Pathiram" (ifj;jo ghf cld;gof;if gj;jpuk;). In the said partition, a plot measuring east -west 7 yards and north -south 6 yards shown ABCD in the rough sketch annexed to the written statement, along with a thatched house standing thereon and another plot lying on the south of east -west common path measuring east -west 11 yards and north -south 6 yards shown as EFGH in the above said rough sketch were allotted to Sakthivel Nadar. In case Sakthivel Nadar has conveyed the property citing incorrect measurements and conveyed more extent than what was allotted to him in the partition, such a sale deed could not be a genuine one. The said sale deed shall not be valid and will not bind the appellants/defendants, so far as the excess measurement indicated above. When the father of the respondents/plaintiffs Chellaiah Nadar put up an asbestos cattle shed encroaching upon the common path lying on the north of the appellants/defendants property, a panchayat was convened on 26.12.1986, in which the said Chellaiah Nadar agreed to remove the encroachment and executed an agreement to that effect on 25.12.1991. In fact, pursuant to the above said agreement, the encroachment was removed by Chellaiah Nadar. As he was made to remove the encroachment, the respondents/plaintiffs developed a grudge against the appellants/defendants and hence have come forward with the suit for the above said reliefs with false and imaginary allegations regarding the incidents constituting cause of action as if they were prevented by the appellants/defendants on 27.03.1993, when they brought the materials for putting up construction in the disputed land. The appellants/defendants do not have any objection for making any development within the property of the respondents/plaintiffs measuring east -west 33 feet and north -south 18 feet.