CHINNAMMAL Vs. THIRU MUTHUSAMY

JUDGEMENT

(1.) THIS appeal has been directed against the Judgement in A. S. No. 7 of 1997 on the file of the Court of Subordinate Judge, Attur dated 29. 6. 1998 which had arisen out of a decree and Judgment in O. S. No. 408 of 1990 on the file of the Court of District Munsif, Attur. The unsuccessful first plaintiff, who had lost her case before the Courts below, is the appellant herein. The suit was filed by the first plaintiff for declaration of her title and recovery of possession of the plaint schedule property which is about 648 sq. ft in Survey No. 78/1, in Malliakarai Village, Attur Taluk, Salem District.

(2.) THE short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaint schedule property belongs to the plaintiffs ancestrally. The first plaintiff's paternal grand father Ramasami Gounder purchased them on 1. 6. 1938 under Document No. 2081/38 on the file of the Sub Registrar of Valapady from T. K. Chandrapillai of Thalavaipatti Village for Rs. 100/ -. The said Ramasami Gounder died about 20 years ago leaving his three sons, namely Karuppanna Gounder, Marimuthu Gounder and Perumal Gounder. Karuppanna Gounder and Perumal Gounder died issueless. The second plaintiff is the wife and the first plaintiff is the daughter of Marimuthu Gounder and they are the legal heirs of Ramasamy Gounder. According to the first plaintiff, the suit property was looked after by the second plaintiff, who was mentally ill, who had put up her mother Kammanthattai Muthammal in possession of the plaint schedule property. The said Kammanthattai Muthamma died five years ago, till her death she was paying the house tax to the suit property. Thereafter, the first plaintiff was in possession and enjoyment of the suit property till 9. 11. 1987. The first plaintiff was dispossessed on 9. 11. 1987 by the first defendant, who has denied the title of the first plaintiff to the suit property. The third defendant had purchased the adjoining portion of the suit property for a sum of Rs. 50/- from T. K. Chandrapillai, the common vendor of the first plaintiff's grand father Ramasami Gounder and the third defendant under the registered document No. 2082/38 on 1. 6. 1938. The plaintiffs' grand father had purchased undivided 2/3rd share in the suit survey number and the remaining 1/3rd was purchased by the third defendant. The first plaintiff was living on the western 2/3rd portion and the third defendant was living on the eastern 1/3rd portion. The third defendant had sold her property to one Chinnasamy Chettiar on 4. 11. 1940 under document No. 2486/40 under which north south 28 yards and east west 27 ? yards of land was sold as Item No. 1 and another east west 12 ? yards and north south 10 yards of land was sold as Item No. II. The total extent comes to 3989-? sq. ft. Out of this, the plaintiffs' grand father had purchased 2/3rd share ie. , 2659 ? sq. ft and the third defendant had purchased 1329 ? sq. ft. The first plaintiff had sold 1/3rd of her property to one Maruthai keeping with her 1772 sq. ft. The first defendant with the active connivance of the second defendant has trespassed into the first plaintiff's possession and had forcibly occupied 648 sq. ft. The defendants 1 and 2 are denying the title of the first plaintiff. Hence the suit.

(3.) THE first defendant alone is the contesting defendant in the suit. In his written statement, the first defendant would contend that there is no cause of action for the plaintiffs to file the suit. The suit was not properly valid for the purpose of Court fee and Jurisdiction. The plaintiffs are in no way concerned with the suit property. The vacant house site measuring about 13 ? feet east to west , 48 sq. ft north to south (648 sq. ft) with specific boundaries situated in village natham in S. No. 78/1 of Malliakarai Village was originally belonged to one Kamatchiammal, wife of Chidambara Gounder. The above said Kamatchiammal had executed a registered gift settlement deed on 9. 1. 1973 in favour of Kullammal, wife of Ramasamy Gounder in respect of the above said property. The first defendant had purchased the above said property from the abovesaid Kullammal by virtue of the registered sale deed dated 9. 11. 1987 for a valid consideration of Rs. 5000/ -. From that date onwards, the first defendant has been in peaceful possession and enjoyment of the above said property by exercising all sorts of ownership by paying house tax to Malliakarai Panchayat. The first defendant's vendor had been in possession and enjoyment of the above said property from the date of the above said gift settlement deed dated 9. 1. 1973. Under the sale deed dated 9. 11. 1997, the first defendant had acquired valid title to the suit property. After the death of Ramasamy Gounder, the suit property was not looked after by Mariyaee, or by Muthammal as stated in the plaint. The first plaintiff was never in possession and enjoyment of the property during the relevant point of time. Hence there is no question of dispossession of the plaintiff from the suit property. Since the first defendant is not a party to the documents referred to in the plaint, he is not bound by those documents. The first defendant has not trespassed into the first plaintiff's possession of the suit property. The first plaintiff has not filed the suit on the basis of the documentary evidence. The first defendant is not liable to deliver the vacant possession of the suit property. Hence the suit is liable to be dismissed.