SUDARSANASWAMY Vs. K RUKMANI AMMAL

JUDGEMENT

(1.) THE second plaintiff is the appellant, One Rani Ammal, since deceased, filed Suit O.S. No. 105/76 against one Gopala Koundar, since dead, and the respondents herein for declaration of title and delivery of possession of the suit property with past and future mesne profits and costs on the following averments: THE total extent of 1.77 acres in dry S.No. 78/1 at Kumarakuppam village belonged to one Dhandapani Chettiar, who sold away the South-eastern 42 cents together with certain superstructure to Munusamy Pillai on 24.11.1959 (Ex. A-1) for Rs. 3000/-. THE said extent of 42 cents was subsequently sub-divided us S.No. 78/1-B and the same had been marked as ABKJ in the plaint plan. Munusamy Pillai, who took possession of the same and was in enjoyment, sold it to the said Rani Ammal on (..11.1971 (E.A-3) for Rs. 10.000/- and Rani Ammal took possession of the same and was in enjoyment in her own right. THE deceased Gopala Koundar trespassed upon the suit property, which is a portion in the above said 42 cents and it was a vacant land shown as ABCDEFGH in the plaint plan. Munusamy Pillai and subsequently Rani Ammal had perfected title to the said property by adverse possession. Dhandapani Chettiar sold the remaining portions in the said survey number under a sale deed dated 13.11.1959 to one Balarama Kounder and the deceased Gopala Kounder. Balarama Kounder and Gopala Kounder filed a suit in O.S. No. 141/60 before the District Munsif, Villupuram, against Munuswamy Pillai and others claiming title in respect of 1.35 acre excluding the 42 cents subject matter of the sale in favour of Munusamy Pillai. THE suit was decreed on 27.2.1961 and the appeal therefrom in A.S. No. 166/61 was dismissed on 15.10.1962 (ExA-2). THE title in respect of 42 cents had been conceded by Balarama Kounder and Gopala Kounder. Gopala Kounder was estopped from questioning Rani Ammal's title to the said 42 cents. THE said Gopala Kounder had trespassed upon the suit property measuring 19 cents out of the said 42 cents on or about 15.3.1972 shown as ABCDEFGH in the plan. He had been deriving good income from the trespassed portion by various crops. Inspite of demand, he had not delivered possession of the property. He was also denying Ramani Ammal's title to the suit properties since 15.6.1974. It would appear that on 2.7.1965 Dhandapani Chettiar executed a sale deed in favour of one Kanna Pillai purporting; to convey a portion of R.S. No. 78/1. THE sale deed was not true or valid. It would not be binding on Rani Ammal. THEre was no portion left in R.S. No. 78/1 after the sale in favour of Munuswamy Pillai and Balarama Kounder for selling to Kanna Pillai. Kanna Pillai died in 1972 and his legal representatives were Rukmani Ammal, Vijayan and Gowri Ammal, who were defendants 2 and 4 in the suit, and respondents 2 and 4 herein. Since the sale deed in favour of Kanna Pillai had cast a cloud upon the title of Rani Ammal, Kanna Pillai's legal heirs had also been impleaded as parties in the suit. THEy never enjoyed any portion of the said 42 cents. Originally the suit was dismissed. Rani Ammal preferred an appeal. During the pendency of the appeal she executed a Will on 14.4.1978 in favour of the appellant herein. Rani Ammal died on 20.4.1978. THE appeal was remanded and the present appellant came on record as the second plaintiff and prosecuted the suit.

(2.) GOPALA Kounder resisted the suit inter alia contending as follows: Munusamy Pillai never took possession of the property. It was also incorrect to state that GOPALA Kounder and Balarama Kounder conceded and admitted the title of Munusamy Pillai over 42 cents in the earlier proceedings. It was also incorrect to allege that GOPALA Kounder trespassed upon the suit property. The annual income alleged was highly exaggerated. The sale in favour of Munusamy Pillai was not true or genuine. Equally the sale in favour of Rani Ammal was also not true and valid. It had "been held in the earlier proceedings that the entire sale in favour of Munusamy Pillai was not genuine. The present suit was therefore barred by res judicata . Subsequent to the earlier proceedings in O.S. No. 141/60 and A.S. No. 166/61 Kanna Pillai had purchased 30 cents in the suit property on 2.7.1965 for Rs. 600/- and ever since the date of the said sale GOPALA Kounder was in possession as a permissive occupant under Kanna Pillai till his death and there after, his legal representatives, viz , respondents 2 to 4. Thus the title of the deceased Ramani Ammal, if any, got extinguished by adverse possession of respondents 2 to 4 their predecessors in title. The tres pass alleged was not true. The plea of adverse possession was invented for the purpose of the case. Rani Ammal had not acquired title by adverse possession.

(3.) PER contra, Mr. V. Raghavachari learned Counsel for the contesting respondents, submitted that in the prior proceedings the sale deed Ex. A-1 in favour of Munusamy Pillai had been declared to be void and consequently, the deceased Rani Ammal, who claimed by purchase under Ex. A-2 from Munusamy Pillai, would not derive any title as the sale deed in favour of her vendor had been declared to be not valid. This would operate as res judicata. Therefore, the finding reached by the Courts below that the principles of res judicata would apply to the present case was in order. The learned Counsel further submitted that so far as adverse possession is concerned, if at all Munusamy Pillai could claim any possession, it could be only from the date of passing of the decree for possession in appeal in A.S. No. 166/61, viz, 16.10.1962 and from 15.10.1962 till the alleged trespass by Gopala Kounder in 1972 the period of 12 years, had not elapsed and there could be no adverse possession. The learned Counsel relied on the decision of Raju, J. in Veeramuthu v. Puttalayee (1997 II CTC 245). The learned Counsel also stressed the fact that deceased Rani Ammal was guilty of laches as she did come to court nearly four years after the alleged trespass in 1972. The learned counsel lastly submitted that the decision of the courts-below was based on an appreciation of oral and documentary evidence and sitting in second appeal this Court could not interfere with the factual finding under Section 100 of Code of Civil Procedure.