M VELUSAMY Vs. P KANDASAMI

JUDGEMENT

(1.) 1. The plaintiff is the appellant. The plaintiff filed the suit for declaration and possession and for mesne profits.

(2.) THE case of the plaintiff is as follows: THE property described as A schedule originally belonged to Venkatasubba Chettiar. He died in the year 1972 leaving behind him his son Kandasami, widow and daughter to succeed to his estate. In the partition between the heirs of Venkatasubba Chettiar, the property mentioned as A schedule has been allotted to one of the daughters namely Jayamanohari. On 23.1.1978, the plaintiff purchased the A schedule property for a valid consideration of Rs.40,000 from Jayamanohari and the plaintiff has been in possession and enjoyment of the same. THE first defendant occupied B schedule property which is part of A schedule property during the last days of Venkatasubba Chettiar and he has been running a tea shop. THE occupation of B schedule property by the first defendant is illegal. THE first defendant is bound to pay profits to the plaintiff. THE plaintiff issued notice to the first defendant on 20.6.1978 directing him to surrender possession. THE first defendant gave reply stating that the B schedule property belongs to the second defendant the Karur Municipality and that he had encroached on the property in or about in the year 1966. THE contention put forward by the first defendant is not true. THE B schedule property is not the property of Karur Municipality.

(3.) IN the plaint, the entire property is described as A schedule. The B schedule is part of A schedule and it measures 13 1/2 feet north south on west and 15 feet on east and 18 1/2 feet east west on the southern side. The B schedule property measures 242 sq. feet. The plaintiff purchased the A schedule property from Jayamanohari under sale deed Ex.A-1 dated 23.1.1978 for a sum of Rs.40,000. It is the case of the plaintiff that the property originally belonged to Venkatasubbaraya Chettiar and that in the partition, the A schedule property fell to the share of Venkata Subbaraya Chettiar and that after his death, Jayamoanhari released her right in respect of joint family property under Ex.A-3 dated 20.10.1972 and she was given the present A schedule in lieu of her release. Both courts have concurrently held that the suit property belongs to plaintiff and his predecessor in title. Though the first defendant contended that B schedule property belongs to Karur Municipality, the said contention was negatived by the Courts below. IN fact, the second defendant Municipality does not claim any title to B schedule property. Both courts on the pleadings and oral and documentary evidence have come to the conclusion that the suit property belongs to the plaintiff's predecessor in title and that the second defendant Municipality has notice to the same. The above concurrent finding of the courts below have become final and as such, the finding of the courts below that the plaintiff is owner of the suit property have to be upheld.