M. ANTHONY (DIED) Vs. S.R. MUTHUSAMY

JUDGEMENT

(1.) The Second Appeal has arisen out of the judgment and decree dated 27.09.2004 in A.S. No. 316 of 2004 on the file of the learned Additional Subordinate Judge, Dindigul, reversing the judgment and decree dated 15.06.1999 in O.S. No. 155 of 1996 on the file of the II Additional District Munsif Court, Dindigul.

(2.) (i) The appellants, who are the plaintiffs, succeed in the trial Court and lost in the first Appellate Court. The respondents are the defendants and appellants in the first Appellate Court. The appellants filed O.S.No.155 of 1996 on the file of the II Additional District Munsif Court, Dindigul for declaration that A schedule property belongs to them, for possession of B schedule property and for permanent injunction in respect of C schedule property. According to the appellants, A schedule property originally belonged to Pithalaipatti Savari Muthu @ Sinthamani Savari Muthu Servai, S/o Pithalaipatti Arokiam, the same being his self acquired property. In the revenue records, the name of said Savari Muthi Servai is mentioned as P.Savarimuthu @ A.S.Savarimuthu. He died on 05.12.1940 leaving behind his two sons viz., Soosai Servai and Madalai Muthu Servai, who inherited A schedule property. Soosai Servai died on 28.12.1960 leaving behind the appellants 4 to 6 as his legal heirs. The appellants 4 to 6 were in possession and enjoyment of A schedule property along with Madalai Muthu Servai, second son of Savari Muthu Servai @ Sinthamani Savari Muthu Servai. Madalai Muthu Servai died on 26.12.1991 leaving behind the appellants 1 to 3 as his legal heirs. The appellants are in possession and enjoyment of the A schedule property. Patta was issued in the name of P.Savari Muthu Servai @ A.S.Savari Muthu. After his death, his sons Madalai Muthu Servai and Soosai Servai were paying kist. One Chinnaiah Servai was younger brother of Savari Muthu Servai. He did not have any property and he was maintained by Savari Muthu Servai. He died leaving behind his four sons. Neither Chinnaiah Servai nor his sons had title over A schedule property. They encroached certain portions of A schedule property on Southern and Western sides and obtained patta stating that the property is their self acquired property. (ii) The appellants filed O.S.No.721 of 1993 against the legal heirs of Chinnaiah Servai. One Israel Duraisamy, son of Arokiam Servai and Therasammal, without any title to the suit schedule property, sold properties in S.Nos.1002 and 1022 to one K.S.O.Ponnaiya Rawuthar, who in turn settled the property in favour of his daughter viz., Noorjahan Begum, the fifth respondent in the year 1970. Even after the said sale, the suit properties are in possession of ancestors of appellants. In the year 1943, Soosai Servai and Madalai Muthu Servai, sons of Savari Muthu Servai leased the property in S.Nos.1023/1 and 1023/3 for Rs. 400.00 to K.S.O. Ponnaiah Rawuthar. But they continued to be in possession and enjoyment of the property. Before the death of K.S.O.Ponnaiah, in the year 1992, Soosai Servai and Madalai Muthu Servai discharged the lease and obtained receipt. Apart from this, no encumbrance was created by ancestors of appellants. (iii) Noorjahan Begam, the fifth respondent and legal heirs of Chinnaiah Servai did not take possession of the suit properties even though the sale deeds of the year 1986. The legal heirs of Chinnaiah Servai and respondents tried to create documents as though they have title over the B schedule property, but the same was prevented by the first appellant. Without knowledge of the appellants, the respondents with the help of others, fraudulently subdivided the properties and obtained patta. The said documents are not valid and will not bind the appellants. They are in possession of the suit properties. (iv) The respondents 4 to 6 and Madalai Muthu Servai issued a notice dated 22.03.1991 to legal heirs of Chinnaiah Servai. They sent a reply dated 14.04.1991 through their advocate containing false averments. The appellants came to know that the legal heirs of late Chinnaiah Servai obtained patta six years earlier, as though they have title over the suit properties. The first respondent tried to create a charge over the suit properties. The appellants sent a notice dated 04.04.1992 through their advocate to Syndicate Bank at Dindigul Branch and Vellode Branch. (v) First appellant also gave a complaint dated 22.04.1992 to the District Collector. The first respondent encroached 23 Acres 36 cents on the Western side and planted cashew trees. The first respondent is a very influential person with men power. Therefore, the appellants are not able to take possession. The first respondent had dug a bore well in S.No.1067. In the circumstance, appellants filed O.S.No.721 of 1993 against the legal heirs of Chinnaiah Servai and first respondent. (vi) In the earlier suit, in I.A.No.455 of 1995, an Advocate Commissioner was appointed and before the Advocate Commissioner would inspect the properties, on 11.09.1995, the first respondent cut seven mango trees in S.No.722 worth Rs. 10,000.00. They obtained permission to withdraw the suit with liberty to file a fresh suit with same cause of action and filed the present suit in O.S. No. 155 of 1996.

(3.) (i). First respondent filed written statement, which was adopted by the second respondent, denying various averments made in the plaint. They denied that A schedule property belonged to Pithalaipatti Savari Muthu @ Sinthamani Savari Muthu Servai and stated that the properties in old S.Nos.1002, 1022 and 1067/1 belonged to Kombaiyanpatti Savari Muthu Servai. He purchased the said properties measuring 3 Acres 45 cents in S.No.1002 and 7 Acres 60 cents in S.No.1022 by the deed of sale dated 31.08.1903. He was already owning remaining property in S.No.1022. Savari Muthu Servai mentioned by the appellants in the plaint is not the person mentioned in the sale deed dated 31.08.1903. After his death, his son Arokiam Servai and his children sold the property measuring 2 Acres 14 Cents in S.No. 1002/2, 9 Acres 10 cents in S.No.1022 and 1 Acre 98 cents in S.No.1067/1 to K.S.O. Ponnaiah Rawuthar by the deed of sale dated 17.12.1924. The property measuring 4 Acre 40 cents in S. No. 1002/1 originally belonged to Elizabeth ammal as per the document dated 17.12.1924, who in turn, sold the same to Arulappan Servai, S/o. Royappan Servai by the sale deed dated 21.07.1939, who in turn sold the property to K.S.O. Ponnaiah Rawuthar by the sale deed dated 03.12.1942. The said K.S.O.Ponnaiah Rawuthar was in possession and enjoyment from the date of his purchase and by the settlement deed dated 23.09.1970, settled the property in S. Nos. 1002/1, 1002/2, 1067/1 and 1022 on his daughter Noorjahan Begam/fifth respondent herein. (ii) Fifth respondent by the deed of sale dated 22.01.1986 sold 5 Acres out of 9 Acres 10 cents in S.No.1022 to the respondents 2 to 4. Again by the deed of sale dated 31.01.1986, she sold the remaining portions to the respondents 2 to 4. Fourth respondent by the deed of sale dated 16.10.1995 sold his share to second respondent. The third respondent sold his share to the first respondent. The property in S.No. 1067/2 did not belong to Savari Muthu Servai @ Sinthamani Savari Muthu Servai. The said property belonged to Chinnaiah Servai and the legal heirs of Chinnaiah Servai sold the property to the second respondent. The said property in S. Nos. 1023/1, 2 and 3 belong to respondents 1 and 2 and appellants do not have any title over the suit properties. The respondents spent Rs. 5 Lakhs by deepening and dug a bore well with the knowledge of the appellants. They also laid underground pipelines for agricultural purpose. Appellants did not object to the same and are estopped from claiming the property by their silence. The suit is barred by limitation.