D SIVAKALAI Vs. DHAYAN BASHA

JUDGEMENT

(1.) This Second Appeal has been filed to set aside the judgment and decree dated 29.04.2014 made in A.S.No.225 of 2012 on the file of the III Additional City Civil Court, Chennai, confirming the judgment and decree dated 21.07.2011 made in O.S.No.8514 of 2008 on the file of the XV Assistant City Civil Court, Chennai.

(2.) The appellant is plaintiff and first respondent is the second defendant in O.S.No.8514 of 2008 on the file of the XV Assistant City Civil Court, Chennai. The appellant filed the said suit for declaration that she is entitled to occupy the land on the eastern side of her property without any interruption or inconvenience caused by one deceased Dhayan Basha and first respondent or anybody on her behalf. According to the appellant, she purchased the suit property on 20.04.1994 from Mithrammal. The said Mithrammal purchased the suit property from Dr.Dilara Begum, wife of Haji Mohamed Siddique Sait Shahib on 14.10.1968. From the date of purchase, she is in possession and enjoyment of the suit property. She purchased the property measuring 342 Sq.ft. with boundaries. The dimension has been mentioned in the sale deed. The extent of the property is wrongly mentioned as 272 Sq.ft. She came to know about the said mistake only when she approached the Primary Co-operative Land Development Bank Ltd., Saidapet to avail loan. The first defendant agreed to demolish the portion of the property of the appellant and hand over to her. Subsequently, he did not hand over the suit property. Hence, the present suit.

(3.) The deceased first defendant, Dhayan Basha filed written statement and denied all the averments and contended that he is not owner of the suit property. The first respondent is owner of the property. The suit is not maintainable for non joinder of proper party and for filing suit against the wrong person. The first defendant contended that he did not agree to hand over the portion as claimed by the appellant. The appellant purchased only 272 Sq.ft and there is no passage between the property of the appellant and first respondent. The appellant has not taken any steps from the year 1994 for rectifying the defects in the sale deed or for taking possession from the first defendant and first respondent and also contended that suit is barred by limitation.