ADHIMOOLA PADAYACHI AND ANR. Vs. ARUMUGHA PADAYACHI

JUDGEMENT

(1.) The suit filed by the plaintiffs for declaration of title to the suit B Schedule property, for recovery of possession of the same and for mesne profits, was decreed by the trial court. But, on appeal by the 2nd defendant the suit was dismissed. Aggrieved, the plaintiffs are before this Court by way of this second appeal.

(2.) The case of the plaintiffs is as follows: Late Nondi alias Rama Padayachi (hereinafter referred to as Rama Padayachi), through his first wife, had son by name Kesava Padayachi, who died without even getting married and through his second wife Rama Padayachi had two sons, viz., the plaintiffs herein. Rama Padayachi was the owner of the land bearing S.No. 25/1, measuring 2.19 acres described in A Schedule of the plaint and he was in possession and enjoyment of the same. He sold the northern 62 cents out of 2.19 acres along with three other items to one Sivarama Chettiar on 9.8.1929 for Rs. 790 by means of registered sale deed. He was in possession of the remaining 1.57 acres, described in the plaint B Schedule. He sold 38 cents out of the B Schedule property on 3.6.1929 in favour of late Kesi Ammal, his wife and she died intestate, leaving Rama Padayachi and his heirs, as heirs. Therefore, the abovesaid 38 cents sold in favour of Kesi Ammal was also enjoyed by Rama Padayachi and his heirs. Kesava Padayachi executed a settlement deed on 11.5.1966 with regard to his right in the plaint B Schedule property and other properties in favour of the plaintiffs and, therefore, the plaintiffs become entitled to the shares of late Kesava Padayachi also. Rama Padayachi executed two usufructuary mortgages on 1.4.1948 and 16.3.1948 in favour of one Lakshmiammal with regard to 33 cents each, totalling to 66 cents and the abovesaid usufructuary mortgage debts were discharged by the plaintiffs on 30.3.1978 by paying the amount to Rathinasamy, son of Chinnasamy, who is the husband of Lakshmiammal. The plaintiffs are, therefore, entitled to B Schedule property and were in possession and enjoyment of the said property. The defendants, who are the sons of late Vembu Padayachi, claiming right and title over 1.33 acres in A Schedule property, by virtue of the sale deed dated 12,3.1959 executed by the legal heirs of Sivarama Chettiar, in favour of Vembu Padayachi, trespassed over the B Schedule property on 1.7.1978. Hence, the plaintiffs filed the suit for the above said reliefs.

(3.) The 2nd defendant resisted the suit on the following grounds, while defendants 1 and 3 remained ex parte. His father purchased the northern 71 cents of the B Schedule property as well as 62 cents, totalling 1.33 acres from Kuppammal and Rajathi Ammal Vagaira on 12.3.1959 for Rs. 300 and was in possession and enjoyment of the same from the date of purchase to the knowledge of the plaintiffs and their predecessors -in -title and died intestate in or about 1964. The defendants continued to enjoy the family properties left by their father and divided the abovesaid properties by means of a registered partition deed on 8.1.1969. In the partition, the northern 62 cents purchased by Vembu Padayachi was allotted to the 1st defendant, while the southern 71 cents were allotted to the 2nd defendant. They were in possession and enjoyment of their respective shares separately by paying kist. Even if there was any title to the abovesaid 62 cents and 71 cents mentioned above to the plaintiffs and their predecessors -in -title, the defendants have perfected title to the said properties by adverse possession. Therefore, the 2nd defendant sought for the dismissal of the suit.