BALU PILLAI ALIAS BALASUBRAMANIA PILLAI Vs. MAHADEVAN

JUDGEMENT

(1.) SECOND Appeal No. 1059 of 1995 is filed against the judgment and decree in A. S. No. 45 of 1995 preferred against the judgment and decree in O. S. No. 132 of 1992 and Second Appeal No. 1390 of 1995 is filed against the judgment and decree in A. S. No. 52 of 1993 preferred against the judgment and decree in O. S. No. 132 of 1992.

(2.) THE first respondent, who is the plaintiff in the suit filed the suit in O. S. No. 132 of 1992 praying for recovery of possession and also for mesne profits. The Trial Court chose to decree the suit for recovery of possession, but negatived the prayer for mesne profits and as a result of which, the first respondent, who is the plaintiff in the suit preferred A. S. No. 52 of 1993 challenging the dismissal of the suit with respect to the prayer for mesne profits and the appellants herein, who are defendants 5 to 7, preferred A. S. No. 45 of 1993 aggrieved by the decree granted in favour of the first respondent herein for recovery of possession. The first appellate court was pleased to allow the appeal preferred by the plaintiff in A. S. No. 52 of 1993 and dismissed the appeal preferred by defendants 5 to 7 in A. S. No. 45 of 1993. In short, the suit filed by the first respondent/plaintiff was allowed in its entirety at the appellate stage and therefore, defendants 5 to 7 have preferred the present appeals.

(3.) DEFENDANTS 1 to 4, who figure as respondents 2 to 5 before this court, remained absent. The plaintiff has contended that the suit properties originally owned by one Devasundari Ammal and the same were purchased by the plaintiff for valuable consideration under a registered sale deed dated 6. 5. 1979. Devasundari Ammal leased out the suit properties to one Karuthan even prior to the sale in favour of the plaintiff and the said Karuthan was a recorded tenant of the suit properties. Karuthan died in the year 1971. Defendants 1 and 2 are his sons and the third defendant is his widow and the fourth defendant is his married daughter. The third defendant was old and infirm and was blind and the fourth defendant was married off. The first defendant was employed in the Agriculture Department and the second defendant was employed in the Postal Department. The fourth defendant was living at Kodavilagam near Manganallur. None of the heirs of Karuthan contributed his physical labour in the cultivation of the suit properties. However, the first and second defendants purportedly conveyed their tenancy rights in respect of the first item of the suit properties in favour of the fifth defendant under a registered deed dated 5. 6. 1979 for a consideration of Rs. 1600/=. The fifth defendant was also employed at Neyveli and had not cultivated the first item of the suit properties. The sixth defendant, who is the divided brother of the fifth defendant, is cultivating the first item of the suit properties with hired labour. The possession of the second item of the suit properties was given to the seventh defendant by defendants 1 and 2 and the seventh defendant is actually cultivating the second item. None of the defendants who are in possession of the suit properties, is a cultivating tenant and entitled to the benefits of the Act 25 of 1955. Eviction proceeding initiated as against the first, second and fifth defendant before the Revenue Court was dismissed on the ground that the other legal heirs viz. , the widow and daughter of the deceased Karuthan were not impleaded as necessary parties to the said proceeding. With the above pleadings, the plaintiff has sought for recovery of possession from the defendants.