GOVINDAMMAL DIED Vs. ARUMUGHAM

JUDGEMENT

(1.) THE second appeal has been filed by the defendant in O.S.No.53 of 1979 on the file of the District Munsif, Thiruvaiyaru, who succeeded before the learned Trial Judge, but lost before the learned Sub-ordinate Judge at Thanjavur in A.S.No.18 of 1983, challenging the judgment and decree passed by the learned first appellate judge.

(2.) THE suit has been filed by the respondent / plaintiff f or more recovery of possession as per plaint plan ABCB after removing the shed and fence. THE case of the plaintiff is that based on the purchase said to have been made under Ex.A.1 and A2 the defendant contested the claim and disputed the right of the plaintiff for the relief of recovery of possession asserting title in himself by virtue of the sale deed marked as Ex.B2. A commissioner was also appointed and there are more than one report and plan submitted and they were marked as Exs. C1 to C5. Oral and documentary evidence have been adduced on either side and the Commissioner also was examined as Court witness.

(3.) I have carefully considered the submissions of the learned counsel appearing on either side in the light of the judgments of the Courts below and the conclusion recorded by them. Having regard to the observation found in paragraph 7 of the judgment of the Trial Judge. I looked into the documents Exs.A1 and A2 as also Ex.B2 and the evidence of PW 1 to find out the veracity or correctness of the statements found made and noticed in the judgment of the learned Trial Judge on the basis of those documents. A careful analysis would go to show that the suit for recovery of possession straightaway itself is a misconceived remedy in the facts and circumstances of the case and it was in-appropriate also for the learned trial judge as also the first appellate judge, who have chosen to deal with the claim of the parties as though it is for declaration of title when it was only a bare suit for recovery of possession in which the question of prima facie title alone can be gone into incidentally. No final adjudication or declaration of title can be made.