AMMENA AMMAL Vs. JAHABAR NACHIAR

JUDGEMENT

(1.) THE defendant in O.S. No. 281 of 1979 on the file of the District Munsif, Nagapattinam and the appellant in A.S. No. 48 of 1981 on the file of the Subordinate Judge of Nagapattinam is the appellant in the Second Appeal. THE plaintiffs in the said suit and the respondents in the first appeal are the respondents in the Second Appeal. Second Appeal No. 682 of 1984: THE plaintiff in O.S. No. 280 of 1979 on the file of the District Munsif, Nagapattinam and the appellant in A.S. No. 47 of 1981 is the appellant in the Second Appeal. THE defendants in the suit and the respondents in the appeal are the respondents in the Second Appeal.

(2.) THE subject matter of the two suits is the eastern portion of the property in T.S. No. 58, Miah Street, Nagur. THEre were two sisters Fathuma Gani and Azeez Nachiar. THEy had a cousin by name Jainabu Gani. Jainabu Gani and Fathima Gani sold T.S. No. 58 to one Fathima Beevi by a sale deed dated 2.5.1939 which is Ex.A1. THE daughter of Fathima Beevi is Ameena Ammal. THE plaintiff in O.S. No. 280 of 1979 and the defendant in O.S. No. 281 of 1979. Fathima Beevi settled the property covered by Ex.A1 in favour of the present appellant under a settlement deed, Ex.A2 dated 15.6.1973. Jahabar Nachiar, the first plaintiff in O.S. No. 281 of 1979 is the daughter of Azeez Nachiar. Her husband is Aliah Maricair the second defendant in O.S.N. 280 of 1979 and the second respondent in S.A. No. 682 of 1984. THEre is no dispute that Azeez Nachiar is entitled to the neighbouring land T.S. No. 59 on the east of T.S. No. 58. On the death of Azeez Nachiar, Jahabar Nachiar succeeded to the said property. On 21.3.1960 Jahabar Nachiar sold the property to Jainabugani Ammal. Jahabar Nachiar and through her Jainambugani Ammal put forth a claim to the eastern portion of T.S. No. 58 and this gave rise to the litigation. As already stated, the suit O.S. No. 280 of 1979 was filed by the appellant for declaration of title, for possession and for a permanent injunction. O.S. No. 281 of 1979 was filed by Jahabar Nachiar and Jainambugani Ammal for a permanent injunction. THE two suits were tried together by the learned District Munsif of Nagapattinam. He accepted the case of Jahabar Nachiar and Jainambugani Ammal and dismissed the suit O.S. No. 280 of 1979 filed by the appellant and decreed the suit O.S. No. 281 of 1979 filed by Jahabar Nachiar and Jainambugani Ammal. THE present appellant preferred appeals A.S. No. 47 and 48 of 1981 and they were disposed of by a common judgment. On 26.11.1981 by the learned Subordinate Judge, Nagapattinam. THE learned Subordinate Judge allowed both the appeals, decreed O.S. No. 280 of 1979 and dismissed O.S. No. 281 of 1979. Questioning the decisions against them respondents filed Second Appeal Nos. 257 and 258 of 1982 and this Court found that on the question of title regarding the disputed property no case had been made out for interference, and confirmed the decision of the lower appellate court on the question of title. However on the question of adverse possession, this Court remitted the matter to the lower appellate court for re-appraisal of the evidence on record in the cases regarding adverse possession. This Court also directed the lower appellate court to consider the parties' request, if any, for placing any additional evidence, if a warrant for the same was made out in law.

(3.) THE learned counsel further submitted that the plans filed in the suits clearly established that the disputed property had access only from T.S. No. 58 and this would establish that the property had been only in the enjoyment of the respondents. THE learned counsel also drew attention to the observation by the Commissioner that the access on the side of the appellant to the disputed property had been closed long ago.