VATHAPA GOUNDER Vs. THAMBAYI AMMAL

JUDGEMENT

(1.) THE appeal is against the judgment and decree of the court of the Subordinate Judge of Dindigul in o. S. No. 100 of 1976. THE defendants 1 and 6 to 8 are the appellants.

(2.) THIS is a suit for declaration of the plaintiffs title to the suit property after cancelling the deed of partition dated 22. 8. 65 and for possession with mesne profits, past and future from defendants 1 to 8. The plaint averments are briefly as follows: The plaintiff, who is the wife of the 9th defendant and the mother of the 10th defendant purchased the suit property of an extent of 9. 04 acres in S. No. 323/2 of Chathrapatti village Palani Taluk from defendants 6 to 8, who are father and sons for a sum of Rs. 6 ,000 by and under a registered deed of sale dated 17. 7. 53. In pursuance of the said deed of sale the plaintiff was duly put in possession of the suit property. The suit land is situate in Charthrapatti village, which formed part of a zamin estate, which was taken over by the Government under the provisions of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari )Act. In the survey and settlement effected thereafter the title of the plaintiff to the suit property has been recognised and patt a has been issued to her. The plaintiff was doing personal cultivation through her husband till about 1963 as evidenced by the adangal accounts, and she has been paying the kist ever since the purchase. The first defendant is well known to the plaintiff's husband. He is the brother of defendants 4 and 5. The second defendant is the wife of the first defendant and the third defendant is the mother of the second defendant. There is a tiled chalai house in the suit property. The plaintiff's husband, with the consent of the plaintiff, allowed the defendants 1 to5 to reside in the aforesaid chalai house and keep watch over the suit property. Their possession of chalai house is purely permissive. In falsi 1374 the plaintiff's husband as the power of attorney agent of the plaintiff, leased out the scheduled land to one Thiruppathi Naicker raised cotton and groundnut crops. The defendants 1 to 5 who are living in the chalai house, were not only negligent in watching the crops but allowed their cattle stray and it has caused severe loss to the tenant, Thirupatti Naicker. In the circumstances, the said Tiruppathi Naicker did not want to continue the lease after one year and nobody also was prepared to take the land on lease in view of the attitude of the defendants 1 to 5. The plaintiff, therefore called upon the defendants 1 to 5 to vacate the house, but they refused to do so. To the notice issued by the plaintiff the first defendant sent a false reply setting up title to the suit land in defendants 6 to 8, who have sold the land to the plaintiff. There upon the plaintiff filed a suit against the defendants 1 to 8 in O. S. No. 413 of 1966 on the file of the District Munsif's Court, Palani for declaration of the title to the suit property and for consequential injunction or in the alternative for recovery of possession. She also prayed for past mesne profits for falsi 1375 during which the land was lying fallow. Taking advantage of the alternative relief of possession asked for by the plaintiff, the defendants 1 to 8 trespassed into the suit property and began to cultivate the land unlawfully. They contended in their written statement filed in the said suit that the sale by defendants 6 to 8 in favour of the plaintiff dated 17. 7. 53 was sham and nominal, that it was not acted upon, that the debts due to the Government and other liabilities were discharged by the 6th defendant, and receipts were obtained in the name of the plaintiff that the 6th defendant alone paid kist in the name of the plaintiff, that Thiruppathi Naicker never enjoyed the suit land and that the 6th defendant was in possession and had prescribed title by adverse possession. It was also contended that the plaintiff had no subsisting title to the suit property in view of the deed of partition dated 22. 8. 65 in family of the plaintiffs husband under which the suit property was allotted to her son the 10th defendant herein. The contentions raised by defendants 1 to 8 are all false and fraudulent. The deed of sale in favour of the plaintiff is true and fully supported by consideration. The debts mentioned therein were discharged by the plaintiff. There was also an undisclosed mortgage decree in O. S. No. 73 of 1953, on the file of the District Munsif of Palani which was also subsequently discharged by the plaintiff. The plaintiff was not a party to the partition deed entered into between her husband, the 9th defendant herein and her son, the tenth defendant and who was not, therefore, bound by the allotment to the suit property to the 10th defendant in the said partition. The plaintiff filed an application in the said suit in I. A. No. 433 of 1967 for appointment of a receiver and a receiver was appointed by the court. However, the defendants 1 to 8 were al- lowedto harvest the crops on deposit of Rs. 2 ,000. The suit was subsequently transferred to the file of the District Munsif and numbered as O. S. No. 1499 of 1968. After trial it was ultimately decreed in favour of the plaintiff. The defendants 1 to 8 preferred an appeal in A. S. No. 79 of 1969'on the file of the sub-court, Dindigual and the appeal was dismissed. The matter was taken up by the defendants 1 to 8 in S. A. N. 439 of 1972 on the file of the Court. During the pendency of the second appeal this court passed an order directing the defendants 1 to 8 to deposit a sum of Rs. 3000/- and continue to deposit Rs. 750 every year. The defendants 1 to 8 deposited Rs. 3000 and continue to deposit Rs. 750 in October, 1973 and another sum of Rs. 750 in October, 1974 and the entire amount of rs. 6500 was allowed to be withdrawn by the plaintiff. No deposit was made by the defendants subsequently. The second appeal was however allowed by this Court on dated 21. 11. 75, on the ground that in the face of the partition deed the plaintiff should have filed the suit along with her son the 10th defendant as plaintiff or should have filed the suit against him and others and she had not, therefore, established her title. It was also observed by this court that it was open to the plaintiff to file a separate suit impleading all the parties. The plaintiff is, therefore, obliged to file the present suit impleading her husband as the 9th defendant and her son the 10th defendant in order to obtain adjudication in their presence. Though the said partition is not binding on the plaintiff and the plaintiff is entitled to ignore the same, by way of abundant caution she also prayed for the concellation of the said deed of partition so far as it related to the plaint scheduled property. She has also claimed mesne profits at the rate of rs. 1,500 per annum from 1966 upto the date of plaint and after giving credit to the sum of Rs. 6,500 realised by the plaintiff she has claimed in the suit the balance of Rs. 7,500 as past mesne profits at the same rate till delivery of possession.

(3.) THE plaintiff has filed a reply statement refuting the contentions of the defendants 1 to 3, 7 and 8.