NAGAMALAI THEVAR Vs. PANDARAM

JUDGEMENT

(1.) THE plaintiff, who lost in both the courts below, is the appellant. He filed the suit for possession of the eastern 85 cents out of 1 acre 87 cents comprised in r. S. 126/3-A called 'kalpulichanpatti Punjai' in Vikramangalam village, thirumangalam taluk. The suit property is A schedule property which forms part of B schedule property. The appellant's case was that the entire B schedule property belonged originally to Naga Thevar. The appellant had filed S. C. 312 of 1940 in the District Munsif Court, Thirumangalam for recovery of certain moneys due to him from Naga Thevar. After the death of Naga Thevar, pending that suit, his sons Chinnakannun alias Kaluva Thevar and Peyandi Thevar were added as his legal representatives. Subsequently, a decree was obtained in that suit and E. A. 87 of 1942 was filed for transmission of the decree to the original side for execution. Thereafter, the appellant filed E. P. 121 of 1942, and got the entire B schedule property attached in execution of the decree on 9-5-1946. Subsequently, the property was brought to sale in E. P. 405 of 1952 and purchased by the appellant himself on 27-7-1953 under the sale certificate, Ex. A-1, subject to an oath under Ex. B-12 dated 6-6-1940 executed by Naga thevar's sons in favour of the second respondent's mother Myakkal over the western 1 acre out of the B schedule property. After obtaining the sale certificate, Ex. A-1, the appellant filed E. A. 701 of 1956 for delivery under O. 21, R. 96, C. P. C. and obtained delivery on 19-12-1956, as seen from the delivery warrant and akthakshi Ex. A-2. Subsequently, he got the Patta Ex. A-3 transferred in his name on 8-4-1965. He claimed to be in possession of the property since the date of delivery and to have paid kist under Exs. A-4 to A-6 and he alleged that the respondent trespassed into the A schedule property and were raising crops and that he was, therefore, entitled to recover possession of the A schedule property with past mesne profits of Rs. 720 and future mesne profits. The suit was filed after the appellant had send the notice Ex. A-7 and had received the replies Exs. A-8 and A-9 from respondents 1 and 2 respectively.

(2.) THE respondents admitted that the B schedule property belonged to Naga thevar and that the A schedule property is part of the B schedule property and contended that the B schedule property developed on Naga Thevar's sons on his death. The respondents denied knowledge about the court proceedings in S. C. 312 of 1940 and the execution petition filed on the basis of the decree passed in the suit and contended that the delivery alleged to have been taken on 19-12-1956 was only a paper delivery and not actual delivery. The first respondent had purchased 25 acres in A schedule property from Naga Thevar's son Markantan and others under Ex. B-2 dated 8-5-1957 and 18 cents in A schedule property from one Pandi son of Chinnekknum Thevar under Ex. B-3 dated 23-12-1957. The second respondent has purchased 64 cents under Exs. B-11 and B-15. The respondents contended that they had purchased the entire a schedule property and that they have acquired title by adverse possession. The respondents further contended that the suit was bad for misjoinder of causes of action on the ground that they were in possession of specific extents of the A schedule property in pursuance of the separate sales in their favour.

(3.) BOTH the courts below held that the delivery on 19-12-1956 was only a paper delivery and not actual delivery and that the first respondent had acquired title to the property by adverse possession for over the statutory period. They also found that the first respondent, the purchaser under Exs. B-2 and B-3, the second respondent, purchaser under Exs. B-11 and B-15, and the second respondent as the heir of the mortgagee Mayakkal under Ex. B-12 were in possession of specific portions of the A schedule property and that the suit was, therefore, bad for misjoinder of causes of action. In this view, both the courts below dismissed the suit without going into the question of the quantum of mesne profits.