M R SETHURATNAM IYER Vs. CHINNA SOLAN

JUDGEMENT

(1.) On the allegations that the plaintiffs father obtained a decree against the father of the present defendants and also against defendant 3, in O.S. No. 1180 of 1904, for the suit lands, and took delivery thereof on 27 September 1908, through Court in execution of the decree, and that in 1909 the defendants trespassed upon about 2 acres of the said lands and in 1917 upon about 5 more acres and that they were also attempting to disturb the plaintiff's enjoyment of the lands in B schedule, the plaintiffs instituted the original suit for possession of the A schedule lands, and for an injunction and if necessary also possession of the B schedule lands, attached to the plaint, with mesne profits.

(2.) Of defendants 1, 2 and 3, who are brothers, defendant 3 disclaimed all interest in the suit lands, and defendant 2 was subsequently exonerated by the plaintiffs, and defendant 1, the really contesting defendant in the suit alleged that the lands belonged to the defendants, that in the partition which took place 25 years prior to the suit most of the suit lands fell to defendant 1's share that after the death of their father the defendants were in possession of his properties also, that the decree in the prior suit was not binding on the defendants, that the plaintiff's father never took actual delivery of the plaint lands in execution of the prior decree, and that the suit was barred by limitation. There was also a further plea raised in the additional written statement of defendant 1 that the suit for injunction in respect of B schedule properties was not maintainable as the plaintiffs were not in possession of the same.

(3.) Six issues were framed by the District Munsif, issue 1 raising the question of alleged trespass and also limitation; issue 2, raised the question of partition; issue 3 raised the question whether defendants 1 and 2 were precluded from putting forward the pleas by reason of the decision in O.S. No. 1180 of 1904; issue 4 raised the question whether the plaintiff was entitled to an injunction in respect of B schedule lands; and issue 5 was whether defendants 1 and 2 has acquired title by reason of adverse possession of both warams as contended by them; and issue 6 raised the question of the relief to which the plaintiffs were entitled.