CHINNATHAMBI GOUNDER Vs. ROYAL GOUNDER

JUDGEMENT

(1.) This is a case where both the courts below after having referred to Section 119 of the Transfer of Property Act, failed to correctly digest the scope and effect of the said salient and salutary provision in tackling the problem the present proceeding posed and consequently made an erroneous approach. Nonetheless the trail court reached the right conclusion, while the lower appellate court reversed it.

(2.) The parties are divided brothers. The appellant before me resisted the suit O.S. No. 6 if 1972, on the file of the district Munsif Court, Villupuram, brought by the respondent for declaration of the respondent's title to the suit property and for permanent injunction or in the alternative for recovery of possession on the ground that the appellant lost not only title but also possession to the property which he got under the deed of exchange, dated 4-6-2967, marked as Ex. A-1, in exchange of his property to the respondent and that consequently, the respondent is not entitled to clam possession of the suit property. The trial court accepted the defence put forward by the appellant therein and dismissed the suit. The lower appellate court held that though the defendant could be credited with ethical considerations, in law his right as secured under Section 119 of the T.P. Act (hereinafter referred to as the Act) is not to take the law to his own hands and to trespass into the suit property, but, to enforce his right for recovery of possession of the suit property which admittedly was conveyed by him to the respondent before me in exchange of the respondent's property. I have already referred to that the appellant before me last possession of the property which he got from the respondent in exchange of his property (suit property) under the deed of exchange Ex. A-1.

(3.) It is, therefore, relevant to extract Section 119 of the Act--