S GANESAN Vs. BHARATHIRAJAN

JUDGEMENT

(1.) THE plaintiff is the appellant. THE suit is filed in O.S. No.80 of 1993 on the file of Sub Court, Ramanathapuram seeking declaration and permanent injunction. THE case of the plaintiff in a nutshell is as follows.

(2.) THE suit property originally belonged to one Sonaimuthuservai. In pursuant to the partition deed dated 14.05.1970 which is marked as Ex.A2, the suit property was allotted to one of his son by name Balu. THE said Balu has executed a registered mortgage in favour of the plaintiff in Ex.A3 dated 27.07.1971. As per the said mortgage deed the plaintiff is entitled to enjoy the income arising out of the suit property in lieu of the interest to the paid by the said Balu. THEreafter a sale deed has been executed by the said Balu in favour of the plaintiff in Ex.A.1 dated 11.06.1975. According to the plaintiff Ex.A4 to E.A36 would show that the plaintiff is in possession and enjoyment of the same as a owner. Since the wife and minor children of Balu have sold the suit property in favour of the defendant under Ex.B5 the plaintiff was constrained to file the suit based upon the title and adverse possession and consequential permanent injunction.

(3.) BEING aggrieved against the same the plaintiff has preferred the present appeal. The learned counsel for the appellant submitted that, on perusal of Ex.A3 to Ex.A36 the plaintiff is in possession beyond the statutory period and therefore the Court below ought to have decreed the suit. According to the learned counsel that the settlement has not been acted upon since no attempt has been made to change all the records in the name of the vendors of the document. It is further submitted that the Court below has not even looked into the contention of the appellant regarding the adverse possession and no issue has been framed for the same. The learned counsel has also submitted that in as much as settlement deed having been cancelled by the said Balu the suit is liable to be decreed.