GOVINDAMMAL Vs. AMMASI ROUNDER

JUDGEMENT

(1.) PLAINTIFFS 1, 3 to 6, 8 to 12 and the legal representatives of the plaintiff No.7 are the appellants. They filed suit O.S.No.148 of 1977 before the District Munsif's Court, Kallakurichi against the respondent herein for declaration, recovery of possession and mesne profits alleging as follows: The suit property originally belonged to one Ramu Reddiar son of Muthu Reddiar. He gifted the property to his daughter Pachaiammal on 1.2.1951 under Ex.A-1.The gift was accepted by Pachaiammal and she was in enjoyment. Under Exs.A-1 to A-4 Pachaiammal gave the suit properties to the plaintiffs. From the date of the settlement deeds Exs.A-2 to A-4 the plaintiffs had been in possession and enjoyment of the suit properties. Except plaintiffs 1 to 4, nobody else had any right over the suit properties. The respondent unlawfully trespassed into the suit property. The suit was therefore necessitated for the reliefs already mentioned. The second plaintiff died pending suit. The third plaintiff and plaintiffs 5 to 12 were impleaded as heirs to the deceased second plaintiff.

(2.) THE respondent resisted the suit contending inter alia as follows: It was not true to say that the settlement deeds Exs.A-2 to A-4 were accepted and acted upon and that the plaintiffs took possession of the properties. THE plaintiffs never enjoyed the properties and Pachaiammal continued to enjoy the suit properties and under Ex.B-1 dated 20.7. 1953 Pachaiammal sold two acres in the suit property to the respondent's father one Ayyasamy Rounder for Rs.5,000 and the said Ayyasamy Rounder was in enjoyment and after his death, the respondent was in enjoyment. Even prior to the purchase from Pachaiammal, the respondent's father was in enjoyment under a bogiam executed by Pachaiammal's father Ramu Reddiar and Pachaiammal. THEre was no trespass by the respondent as alleged.

(3.) THE next question is regarding possession. Even according to the respondent Pachaiammal continued in possession and the bogiam set up by the respondent had not been established. No document evidencing the bogiam has been produced. Except a bald reference to a bogiam in Ex.B-1, there is absolutely no evidence to show that any bogiam was created. THE lower appellate court has relied on Exs.B-5 to B-11, B-13 and B-14 kist receipts standing in the name of the respondent and also B-15 chitta extract to show that patta stood in the name of the respondent. THE discussion by the lower appellate court on the question of possession is perfunctory. THE trial court has adverted to all the documents produced in the case and found that the respondent had not proved his possession and threat P.W.2 and plaintiffs 1 to 4 alone had possession. THE trial court has pointed out the discrepancies in the stand taken by the respondent regarding possession. THE respondent did not even know the extent of the property in his possession. THE evidence on the side of the respondent himself is to the effect that the respondent had been in possession for 7 or 8 years prior to the suit. His possession or his father's possession pursuant to the sale deed Ex.B-1, dated 20.7. 1953 has not been established. No document evidencing the respondent's possession has been produced. THE reliance placed by the lower appellate court on Exs.B-5 to B-11, B-13 and B-14 Kist receipts and B-15 chitta extract is clearly erroneous. THE respondent has not established his possession at all. Consequently the substantial questions of law raised have to be answered in favour of the appellants. THE second appeal will stand allowed and the judgments and decree of the lower appellate court are set aside and those of the trial court restored. However, there will be no order as to costs.