THAILAMMAL Vs. RAMASAMY

JUDGEMENT

(1.) This Second Appeal has been filed to set aside the judgment and decree dated 12.11.2013 made in A.S.No.12 of 2009 on the file of the Subordinate Court, Kallakurichi, confirming the judgment and decree dated 22.04.2009 made in O.S.No.605 of 2006 on the file of the Principal District Munsif Court, Kallakurichi.

(2.) The appellants are the defendants, first respondent is the plaintiff in O.S.No.605 of 2006 on the file of the Principal District Munsif Court, Kallakurichi. The first respondent filed the said suit for permanent injunction restraining the appellants, their men and agents from interfering with his peaceful possession and enjoyment of the suit properties. According to the first respondent, by the deed of sale dated 30.03.1974, he had purchased 1 acre 3 cents in R.S.No.105/2005 of Rayarpalayam Village, Kallakurichi Taluk from one Kaliyammal and her sister. The first respondent sold one acre to first appellant by the deed of sale dated 25.08.1992 and retained 0.03 cents in the north eastern corner described as item No.1. The property was sub-divided and Survey No.105/3-A was given for 0.03 cents and patta No.40 was issued to the first respondent on 17.08.1986. Adjoining to item No.1 is two cents of battai poromboke described as item No. The first respondent is in possession and enjoyment of both properties in item Nos.1 and 2 by constructing thatched house and is residing there. The said thatched house was in dilapidated condition. The first respondent is paying Kist to item No.1 and 'B' Memo charges for item No. On 26.08.2006, the appellants tried to trespass into item Nos.1 and 2 of the suit properties and the same was prevented by the first respondent and he filed the present suit for the relief stated above.

(3.) The second appellant filed written statement and the same was adopted by the first appellant. The appellants denied all the averments and contended that Kaliyammal and her sister were in possession of one acre only. By playing fraud, they got assignment in the year 1962 for one acre and three cents. The three cents was enjoyed by Subbura Pitchamutthu Chettiyar of Rayarpalaiyam Village, who sold the said three cents along with other properties to Sivanandham Ammal by the deed of sale dated 04.09.1967. Eight years back to filing of the written statement, the said Sivanandham Ammal handed over the suit item No.1 to the first appellant for cultivation. From that date onwards, the appellants are enjoying both the properties without any interruption. The appellants came to know about the fraud played by Kaliyammal only after filing of the suit. The first respondent and his vendor were not in possession and enjoyment of the first item of the property at any point of time. The first appellant purchased one acre from first respondent by deed of sale dated 25.08.1992. From the date of purchase of one acre, the first appellant is in enjoyment of one acre along with first item of the property by cultivating and constructing a cattle shed. The second appellant by deed of sale dated 07.06.2006, purchased the three cents in the first item of the property from Sivanandham Ammal. The cattle shed put up by the appellants became dilapidated four months earlier to filing written statement. When the appellants tried to construct the cattle shed, the first respondent prevented them. The first respondent is not residing in the suit properties. He is residing in Chinnasalem. The second item of the suit property is Odai Poramboke belonging to the Government. The first respondent was never in enjoyment of the suit property. Without Revenue Official being impleaded, the suit is not maintainable. The first respondent, using influence created documents. The sub-division is not maintainable. The appellants are taking steps to set aside the sub-division of the properties.