D SAVITHRI Vs. P SUNDARARAJAN

JUDGEMENT

(1.) This Second Appeal has been filed against the judgment and decree dated 26.09.2016 made in A.S.No.79 of 2014 on the file of the learned V Additional District & Sessions Judge, Coimbatore, confirming the judgment and decree dated 27.06.2014 made in O.S.No.501 of 2010 on the file of the learned First Additional Subordinate Judge, Coimbatore.

(2.) Aggrieved by the unanimous decisions of the Courts below the defendants have preferred the above appeal. The suit is filed for recovery of possession of the 'B' schedule property and directing the defendants to pay the damages and future damages. The case of the plaintiff is that the first defendant is the sister of the plaintiff and the defendants 2 to 4 are her children. The father of the plaintiff and the first defendant is one Perumalsamy Naidu, who had executed the settlement deed in favour of the plaintiff on 21.04.1971. Since the date of settlement deed, the plaintiff has been in possession and enjoyment of the suit property. During the life time of the mother Muthammal, the first defendant had stayed with her mother in order to help her. There was yet another sister to the plaintiff by name Ranganayaki, who had filed a suit for partition against the plaintiff in O.S.No.599 of 2000 before the I Additional Sub Court, Coimbatore, which had later been transferred to Fast Track Court II and renumbered as OS.No.537 of 2004 and the said suit was dismissed on merits and the defendants preferred the appeal before this Court in AS.No.868 of 2006 and the same was also dismissed. It is stated that in the said suit, the validity of the settlement deed dated 21.07.1971 was upheld. After the death of the mother, on 26.12008 the defendants 1 to 4 occupied the suit property and refused to vacate the same without having any right over the same. Hence the suit has been filed for delivery of possession and for damages from January 2009.

(3.) The suit was resisted by three defendants by filing written statement and adopted by other defendant, on the ground that the settlement deed is bad and that the defendants were not allowed to be in possession as a premisive occupier. The suit filed in OS.No. 537 of 2004 and the appeal preferred before this Court which all admitted by them. It is also their case that the settlement deed was canceled later by Father Perumalsamy Naidu on 04.05.1987. Hence the defendants claimed right in the suit property as the legal heirs to the said Perumalsamy Naidu.