RAJAMANI AMMAL (DECEASED) Vs. ANBAZHAGAN

JUDGEMENT

(1.) This second appeal is filed by the plaintiffs in the suit for permanent injunction against the defendant in respect of 'A' schedule property in S. No. 413/2 C-1 in Malligaicherri Village, Mayiladurai Taluk, measuring 8 1/2 cents but, actual measurement 10 cents and recovery of possession in respect of 'B' schedule property measuring 1 1/2 kuzi which is part of the S. No. 413/2 C-1 allegedly trespassed by the defendant somewhere in the month of June 1994. According to the plaintiffs, the suit property originally belong to one Kuppusamy Iyer and Meenakshi Ammal. They sold the property to Rathina Padayachi under a registered sale deed dated 020/5/1969. Rathina Padayachi settled the suit property in favour of the second plaintiff who is the grand son of Rathina Padaiyachi born through his daughter who is the first plaintiff. In the settlement deed the survey number of the property inadvertently omitted to be mentioned. Based on the settlement deed, a suit in O.S. 121/92 was filed by the plaintiffs. Since, survey number was not mentioned in the suit schedule, that was withdrawn with liberty to file fresh suit on the same cause of action. Hence, the present suit.

(2.) In the written statement, apart from alleging the present suit is barred by the principle of res judicata, the defendant resisted the suit on the ground that the plaintiff was never in possession of 'B' schedule property. The suit Survey property was sub divided as S. No. 413/ 2 C-1. The defendant purchased a portion of the property from its lawful owner vide sale deed dtd. 06/05/1992 and the remaining portion is in his possession pursuant to the partition between his family member which took place of 27/02/1992. Pointing out that the plaintiff cannot claim possession of 10 cents, while admitting that, as per record, it is only 8 1/2 cents .

(3.) Based on the pleadings, the trial Court framed the following issues: