JAYALAKSHMI Vs. AMIRTHAMMAL

JUDGEMENT

(1.) THE appellants are the plaintiffs. THE appellants filed a suit in O.S.No.909 of 1988 on the file of the Principal Sub-Court, Salem to declare that they are having absolute possession and title to the suit property, restraining the defendants by means of a permanent injunction from in any manner interfering with the absolute possession and enjoyment of the suit property, restraining the first defendant by means of a permanent injunction from executing the decree in O.S.No.1691 of 1981 on the file of the Court of District Munsif, Salem in respect of the suit property.

(2.) FACTS which are necessary for the disposal of this appeal are, as follows: The 2nd plaintiff is the eldest son of the 1st plaintiff, who are living together. The 1st defendant is the paternal uncle's wife of the 2nd defendant. The suit property originally belonged to Ramasamy Udayar, who is the husband of the 1st plaintiff along with other properties. Ramasamy Udayar executed a Settlement Deed dated 29.03.1958 (Ex.A16) in respect of the suit property and other properties and put the 1st plaintiff in possession of the suit property. Ramasamy Udayar died on 20.10.1979 leaving behind the plaintiffs and other son and daughter as his legal heirs. It is further averred by the plaintiffs that right from the date of execution of the Settlement Deed under Ex.A16, they are in absolute possession and enjoyment of the suit property. The suit property was originally a vacant house site and the plaintiffs had put up a thatched shed on it. It is further averred by the plaintiffs that the 2nd defendant owns a tiled house south of the suit property and that the 1st defendant seemed to have obtained a decree against the 2nd defendant under Ex.A7 dated 27.10.1984 in respect of the properties situated on the southern side of the suit property. The plaintiffs became aware of the said proceedings only when the court came and demanded the plaintiffs to deliver possession of the property which was refused by them. Therefore, the plaintiffs filed a suit in O.S.No.909 of 1988 for the above said relief.

(3.) THE Trial Court, on consideration of the oral and documentary evidence, has given a finding that even though the suit in O.S.No.1028 of 1962 is instituted by the 1st defendant in a later point of time to the settlement under Ex.A16 dated 29.03.1958, that by itself will not allow the plaintiffs with any right as the 1st defendant had rightly challenged the Partition Deed under Ex.A1 and obtained a decree by way of compromise, in which the husband of the 1st plaintiff was a signatory and therefore the decree obtained by them in O.S.No.1028 of 1962 is valid in law. As regards the claim of compensation on the part of the plaintiffs, the Trial Court held that Exs.A3, A4 and A10 to A13 marked on the side of the plaintiffs have not established the case of the plaintiffs that they are the owners of the property at New Door No.1F and the said documents have not proved the possession on the part of the plaintiffs. THE Trial Court citing these reasons has decreed the suit on 31.10.1996. Aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs have preferred an appeal in A.S.No.34 of 1997 before the court of the II Additional District Judge, Salem.