GNANAPRAKASAM AND ORS Vs. SABASTHI AMMAL

JUDGEMENT

(1.) The plaintiffs, whose suit for the recovery of possession and for past and future mense profits was dismissed by the Courts below, arc the appellants in this second appeal. According co the case of the appellants, the suit property originally belonged to one Arulayee Ammal who executed a deed on 18th June, 1956 in favour of the respondent herein. Later a suit in O.S. No. 670 of 1963 on the file of the District Munsif's Court, Tiruchirapalli, was filed by her against the present respondent for the cancellation of the said deed on the ground that the said deed was vitiated by fraud and misrepresentation. On 31st October, 1963, that suit was decreed and the appeal filed there from in A.S. No. 197 of 1965, Sub-Court, Tiruchirapalli, was also dismissed. Against that, the matter was carried in second appeal in S. A, No, 350 of 1966 and during the pendency of the second appeal, Arulayee Animal died and the present appellants were impleaded as her heirs and legal representatives. Ultimately, the second appeal was also dismissed on 20th October, 1970. Claiming that the appellants are entitled to all the assets of Arulayee Animal as her legal representatives and therefore entitled to the suit property also, they sought to recover possession of the suit property from the respondent who, according to them must be considered only as trespasser in possession of the property and therefore accountable in respect of the profits and income obtained by her between 1956 and the date of the institution of the suit. It was the case of the appellants that Arulayee was understood to have been advised that she must have the sale deed set aside before recovery of possession of the property could be sought for and therefore, they are entitled to claim exemption under Section 14 of the Limitation Act inasmuch as Arulayee had been prosecuting with due diligence the other civil proceedings in several Courts. The respondent, according to the appellants was therefore bound to deliver possession and on her evading to do so in spite of demands, the suit was instituted by the appellants.

(2.) The respondent herein resisted the suit on the ground that the right of the appellants, if any, is barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure. According to her, even in O.S. No. 670 of 1963 when Arulayee instituted a suit for cancellation of the deed, dated 18th June, 1956, she ought to have prayed for the relief of recovery of possession and owing to her failure to ask the relief of possession which had arisen on the same cause of action, the suit was barred. It was also further claimed by the respondent that she had been in possession of the property in her own right from 18th June, 1956 onwards since the inception, and such possession was adverse and therefore, even on this ground, the suit was liable to be dismissed. The claim of the appellants to the benefits of Section 14 of the Limitation Act was also refuted by the respondent in addition to the claim for mesne profits. On these grounds, the respondent prayed for the dismissal of the suit.

(3.) The learned District Munsif, Tiruchirapalli, who tried the suit held that the suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure. In addition, the respondent was held to have prescribed title to the suit property by adverse possession and therefore, the suit was barred by time. On these findings, the suit was dismissed. Aggrieved by this, the appellants herein preferred an appeal in A.S. No. 617 of 1973, Sub-Court, Tiruchirapalli. The learned Subordinate Judge concurred with the conclusions of the learned District Munsif and held that the suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure and it is also barred by limitation. The appeal was therefore dismissed confirming the findings of the trial Court.