V MANAKKAN Vs. VEERA PERUMAL

JUDGEMENT

(1.) THE defendants are the appellants.

(2.) THE suit O.S. No.56 of 1980 was filed by the respondent herein against the appellants before the District Munsif, Tirunelveli, for declaration of title and for permanent injunction against them restraining them, their men, etc., from interfering with his enjoyment of the property on the following averments: THE suit vacant site and the house that stood thereon belonged to his grandfather, who sold it to one Manakkan several years back. Manakkan was in possession and enjoyment of the same for many years and on his death, his son, one Lakshmanan was in possession and enjoyment. He left the village for good and settled in a neighbouring village, called Savalakkarankulam. THE house fell down in course of time about 12 years prior to the suit and since then, the respondent was in enjoyment of the vacant site. He had also planted one Vadamadakki and also raised Karuvai trees in the site. On 5.2.1979, he got the sale deed under Ex-A.1 from the said Lakshmanan and had thus perfected title to the schedule site and the trees standing thereon. He was the owner in possession. With a view to put up a house in the site, he was arranging to cut the trees in the last week of December, 1979. This was obstructed by the appellants. One of the appellants wanted to take sale of the site and the respondent had got the sale and having failed in the attempt, the appellants wanted to prevent the respondent from enjoying the property. THEre was no response to the notice issued by the respondent under Ex.B-1 on 19.12.1979. THE suit was therefore necessitated.

(3.) MR. Peter Francis, the learned counsel for the appellants, submitted that the respondent had not pleaded that he was entitled to invoke the provisions of Section 41 of the Transfer of Property Act (hereinafter referred to as the 'Act'), nor did he let in any evidence to substantiate his right to claim the benefits and the lower appellate Court grievously erred in decreeing the suit applying the provisions of Section 41 of the Act. To sustain his stand on this point, the learned counsel relied on the following two judgments: (a) Smt. Parbati Devi v. Kashmirilal Sharma and others, AIR 1959 Cal. 69 (D.B.); (b) Gurbaksh Singh v. Nikka Singh and another, AIR 1963 SC 1917.