MOHAMED ALI Vs. KHADER

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore in A.S.No.132 of 1983 in partly reversing the judgment of the 'learned District Munsif, Cuddalore, in O.S. No. 547 of 1979. The plaintiffs 2 and 3 and the legal representatives of the first plaintiff are the appellants in the above second appeal.

(2.) The plaintiffs filed the suit for declaration of their title to the suit property and for a permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit property. According to the plaintiffs, the suit properties situate in Kurinjipadi village, originally belonged to the joint family of one Arumugha Asari and his sons who were in enjoyment of the same till they sold it to the father of the plaintiffs and the senior paternal uncles of plaintiffs under sale deed dated 5.5.1922. But due to clerical mistake the property was wrongly given in the description of the property in the sale deed and instead of mentioning Survey number as 83/1, O-83, Survey Numbers 88 and 75 are given. The plaintiffs also pleaded that their father and uncle were put in possession of the property and they were in enjoyment of the same. The vendors under the sale deed had directed the purchasers to discharge the mortgage dated 17.3.1919 executed by some of the vendors. The plaintiffs' paternal uncle Rahiman Sahib died about 40 years back prior to the suit and his wife also died subsequently. Therefore, the father of the plaintiffs became solely entitled to the property and patta was also transferred in his name and he was paying the land revenue and after his death about 25 years ago the plaintiffs became exclusively entitled to the suit property and since then they have continued to be in possession. Patta has also been transferred in the name of the plaintiffs and they have been paying the land revenue therefor.

(3.) While they were in possession and enjoyment of the property, one Vijayraghavalu Naidu taking advantage of the mistake in the sale deed dated 5.5.1922, took a sale from one Vridambal, who was a member of the family of the original owners, as though the said Vridambal had title to the suit property, and subsequently Vijayaraghavan Naidu appears to have settled the property in favour of Jayalakshmi Ammal. Later claiming to be the owner of the Western 41 1/2 cents in the suit property, she has filed O.S. No. 978 of 1974 on the file of the court of the District Munsif, Vridhachalam against the first plaintiff and the first plaintiff contested the suit claiming that the description of the property in the earlier sale deed was due to clerical mistake and that what was purchased by his father was only the suit property. Though, the suit was decided against him, the first plaintiff preferred an appeal in A.S. No. 9 of 1977 on the file of Sub Court. Chidambaram and the appeal was allowed in his favour by judgment dated 14.3.1978. Therefore, according to the plaintiffs, it was finally decided that what was really purchased under the Sale deed of the year 1922 was only the suit property. Whileso, the defendants had claimed that the property belonged to the Muslim community, questioned the right of the plaintiff and hence the present suit. According to the plaintiffs it was not correct that the third defendant had been elected as Nattanmaikkar of the Muslim Community and the fourth defendant was elected as Muthawalli of the Muslim Community. Even if they had been elected as such that will not give them any right over the property which exclusively belongs to the plaintiffs. According to the plaintiffs, there were 10 Samadhis on the western portion of the suit property and on the eastern portion of the property there were thatched huts and the plaintiffs have rented out the sheds. The plaintiffs have given permission to some of the Muslim'public bury their dead. But what was given was only a licence and as such the members of the Muslim community had no exclusive right to bury their dead in the suit property. However, on 28.2.1979 the defendants and their henchmen have entered the property and cut and removed about 20 trees in the suit property. Hence, the suit.