PADMAVATHI Vs. P M MUNI REDDY

JUDGEMENT

(1.) THIS second appeal has been directed against the decree and judgment in A. S. No. 1 of 1997 on the file of the Court of Subordinate Judge, Hosur, which had arisen out of the decree and judgment in O. S. No. 5 of 1988 on the file of the Court of District Munsif, Hosur. The plaintiff has filed the suit for declaration of his title and also for possession in respect of the plaint schedule property which is 0. 10. 5 Ares = 26 ? cents in S. No. 373/8 in Nanthimangalam Village, Hosur Taluk, Dharmapuri District.

(2.) THE case of the plaintiff was totally dismissed by the learned Trial Judge. Aggrieved by the findings of the learned Trial Judge, the plaintiffs had preferred an appeal in A. S. No. 1 of 1997 before the learned Subordinate Judge, Hosur, who had partly allowed the appeal and granted the relief of declaration and injunction in respect of 20 cents in Plot NO. 1, 2, 3 and 4 as shown in Ex. C. 3-Commissioner's plan and has dismissed the suit in respect of other relief?s (recovery of possession ). Aggrieved by the findings of the learned first appellate Judge in A. S. No. 1 of 1997, the defendants 1 and 3 to 8 have preferred this second appeal.

(3.) THE short facts of the amended plaint sans irrelevant particulars are as follows:-The plaint schedule property is comprised in S. No. 373/8 with an extent of 30 cents in the larger area of 7 acres 60 cents in Perumalpalli Village, Hosur Taluk. The great grand-father of plaintiffs 1 to 3 was Muniyappa @ Gounevari Muniyappa, who died leaving behind only one son Munegowdu @ Gounevari Muniyappa @ Gowdu Munipayya. The said Gounevari Muniyappa also died leaving behind two sons viz. Abbaiah Reddy and Jagganna @ J. M. Muniyappa. The said Abbaiah Reddy also died leaving behind two sons viz. Marga Munireddy and A. Muni Reddy, who are plaintiffs 2 and 3. The said Jaganna @ J. Muniyappa died leaving behind only one son by name P. M. Muni Reddy, who is plaintiff No. 1. Muniyappa is the great grand-father of the plaintiffs 1 to 3. He Had purchased various extents covered in S. No. 373 under 4 registered sale deeds viz. , sale deed dated 09. 06. 1910, 22. 09. 1910, 17. 03. 1926 and 08. 08. 1928. The said Muniyappa, after the purchase of the properties under the above said four sale deeds, was in possession and enjoyment of the same till his death. After this death, his successors in interest including the plaintiffs were/are in possession and enjoyment of the same. To confirm the title of the plaintiffs, the plaintiffs also relied on the sale deed dated 05. 10. 1917 executed by Anumaiah in favour of Muniswamy and Munivenkatadu, gift deed dated 02. 03. 1917 executed by Anumapa in favour of Meeyasaheb and sale deed dated 03. 02. 1934 executed by Munivenkatadu in favour of Muniyamma. The plaintiffs 2 and 3 are the brothers being the sons of one Abbaiah Reddy. The 1st plaintiff is the cousin of the plaintiffs 2 and 3. The total extent of S. No. 373 is 7 acres 60 cents. The said land was originally classified as 'brahmodayam Land', which is covered under T. D. No. 62. The entire Survey No. 373 has been under the possession of the plaintiffs and their ancestors and also some other co-owners from a very long time and the same has been enjoyed by the family members of the plaintiffs from generation to generation. The plaintiffs are entitled to an extend of 30 cents in S. No. 373 and the rest of the area was being enjoyed by the other co-owners by seperating their lands by putting ridges and fences for a very long time. The original suit S. No. 373 being 'brahmodayam Land' survey settlement was conducted in respect of the suit land under the provisions of the Tamil Nadu Minor Inams (Abolition and conversion) into Ryotwari Act of 1963, and under the provisions of the said Act, enquiries were conducted by the settlement Tahsildar, Salem under Section 11 (2) of the above said Act and after enquiry as it was found that the suit land S. No. 373 was being enjoyed by the plaintiffs and other co-owners with 'iruvaram rights' and that as they were in possession and enjoyment of the said land before the appointed date viz. 15. 2. 1968 and as the said land was not required for any public purpose and that there was no other objections for the grant of patta the settlement Tahsildar in his enquiry conducted in the case in SR. No. 958/68/m1 Act 30/63 Hosur accepting the long enjoyment and possession of the plaintiffs and other co-owners, directed that the patta should be granted to the plaintiffs 1 to 3 along with other co-owners who have been enjoying the said land and this order of the settlement Tahsildar is dated 31. 7. 1968 and the said order has now become final and absolute. Therefore, the plaintiffs have become the absolute owners of their portion of 0. 30 cents of land in the said survey No. 373. Apart from the suit land, the plaintiffs also have got some more extent of land in the same survey number about which there is no dispute. The suit is in respect of only an extent of 0. 30 cents in the suit survey No. 373. In respect of the suit land S. No. 373, recently in the year 1985, updating survey was also conducted by the concerned authorities and as per the enjoyment of the plaintiffs, the suit land has been sub-divided in survey number 373/8 with an extent of 0. 30 cents and patta has also been directed to be issued to the plaintiffs in patta No. 641 of Mandhimangalam Village under the updating survey scheme. IN the year 1977 there was also a family partition between the plaintiffs in respect of their family properties and they have also got a partition deed to evidence partition and this partition is dated 30. 05. 1977 and in the said partition deed in the present suit Survey No. 373/8 the first plaintiff is enjoying an extent of 0. 12 cents which is eastern portion and the third plaintiff is enjoying an extent of 0. 12 cents of land which is the western portion and the second plaintiff is enjoying another 0. 12 cents of land in the same survey No. 373/8 which is the central portion. The plaintiffs are enjoying their respective plots separately under sub-division No. 373/8. The plaintiffs have put up fences around S. N. 373/8 and they are using the plaint suit property as menure pits and there are stocking their heyricks in the suit property. The plaintiffs have also put up foundation in the suit property in order to construct a house therein. The first defendant is the grand-daughter of one S. Venkataramanaiah who was the Ex-village Munsiff of the Nandimangalam village. The defendant No. 2 is the father-in-law of the first defendant, and defendants 3, 5 and 7 are the brother-in-law of the first defendant and sons of the second defendant, and defendant No. 8 is the father of the first defendant. None of the defendants have any right, title or interest in respect of the suit property ie. , 373/8 which absolutely belongs to plaintiffs only. The suit survey No. 373/8 is carved out of the original S. No. 373 and the grand father of the first defendant also has got some land in the same survey number which is situated on the east of the suit land of the plaintiffs and the plaintiffs are not claiming any right or title in respect of the property belonging to the grand-father of the 1st defendant. To show the separate plots of the plaintiffs and the grand father of the first defendant, there is also a wall and fence between the land of the plaintiffs and land of S. Venkataramanaiah the grand-father of the 1st defendant, the plaintiffs understand that the grand-father of the 1st defendant appears to have executed some documents in favour of the first defendant for an extent of about 0. 30 cents in his portion of the land in survey No. 373 and the plaintiffs are not parties to it and whatever may be the recitals of the document, it will not bind the plaintiffs of the suit property S. No. 373/8. The defendants 1 to 8, who are close relations, are now on inimical terms with the plaintiffs for the last 2 to 3 years and they are also influenced in the village, and with their influence the defendants even though they have absolutely no right, title or interest muchless any possession of the suit survey No. 373/8 during the updating survey, surreptitiously got name of the first defendant introduced in the updating survey patta as though she has got some claim in respect of the suit survey No. 373/8. Even if she has got any land personally to the further east to the survey No. 373/8 and not within Survey No. 373/8. The plaintiffs also have taken steps to get the name of the first defendant deleted from the undating survey patta by preferring an appeal to the Sub-Collector, Hosur, and the matter is still pending before the Sub-Collector, Hosur. Arming themselves with the wrong patta issued by the updating survey authority in the name of the first defendant along with the name of the plaintiffs, the 1st defendant supported the other defendants 2 to 8 to make imaginary and untenable claims over the suit property and to give trouble to the plaintiffs in the matter of enjoyment of the land though they are fully aware that they have nothing to do with the suit survey No. 373/8. On 27. 12. 1987 about 12. 00 noon all the defendants forming themselves into an unlawful assembly and arming themselves with deadly weapons with the illegal object of committing trespass upon the suit property of the plaintiffs, attempted to cut the demarcating fences between the land of the first defendant and the plaintiffs and tried to occupy the land by force. But the said attempt was fortunately prevented by some neighbours and the defendants have been kept under check. Since the defendants are numerically large in number they are still asserting that they will come once again and destroy the fences and forcibly occupy the suit land of the plaintiffs. Since the cloud is cast upon the title of the plaintiffs, the plaintiffs have comeforward with this suit for the declaration of their title over the suit property and for permanent injunction against the defendants. The plaintiff had filed an application under Order 39 Rule 1 of CPC for grant of temporary injunction. I. A. No. 11 of 1988 in O. S. No. 5 of 1988 was dismissed by the trial Court. The plaintiffs had filed CMA. No. 18 of 1989 before the District Court. The District Court was pleased to confirm the order of the Trial Court as far as I. A. No. 11 of 1988 is concerned. As against the above said CMA the plaintiffs filed revision before this High Court. This Court also confirmed the order of the trial Court and also the first appellate Court. In lieu of the orders passed by the Court in respect of the injunction, it has become just and necessary to amend the prayer from declaration of title and injunction to that of declaration of title and possession. The defendants after the order of injunction have been asserting hostile title in themselves. Even though the 1st appellate Court and the High Court not clearly held that the defendants are in possession, by way of partition in lieu of the order passed, this relief for declaration of title and possession is sought for as an alternative relief. Hence, the suit.