SEETHARAMAN Vs. MANI

JUDGEMENT

(1.) The plaintiff who had filed the suit for recovery of possession of the suit property after removing the encroachment, has filed this Second Appeal challenging the legality and correctness of the judgment and decree dated 09.03.2005 passed by the Additional Subordinate Judge, Mayiladuthurai, in A.S. No. 10 of 2004 wherein and by which the judgment and decree dated 11.12.2003 made in O.S. No. 98 of 2000 on the file of the District Munsif, Sirkali, was reversed allowing the First Appeal at the instance of the defendant.

(2.) According to the plaintiff, he purchased the property situate at Pulichakadu Village in Sirkali Taluk, on 17.11.1988 from Venkataramani, Rajamani and Natarajan, who were all sons of one Kalyanarama Iyer. The suit property is a vacant site which belonged to the Sattanatha Swamy Devasthanam, Sirkali. The suit land is a proposal land which means that the occupier of the land is competent to convey the same and the owner is to render service to the temple as Oozhiyamdar. The plaintiff, having purchased the same for valid consideration, claims absolute title to the suit property. It is stated that with respect to the same property, the defendant originally entered into an agreement with the plaintiff on 03.4.1983 by paying Rs.6500/- as advance and agreed to pay the balance of Rs.9600/- on or before 30.4.1983. As the defendant did not perform his part of the contract by paying the balance of the sale consideration, one of the plaintiff's vendors, viz., Natarajan issued a notice on 05.11.1983 calling upon the defendant to get the sale completed or else, to terminate the contract. As there was no response from the defendant, the agreement dated 03.4.1983 was cancelled and the property was sold in favour of the plaintiff on 17.11.1988. The defendant coming to know of the sale, attempted to trespass into the suit property which resulted in a suit being filed in O.S. No. 352 of 1988 on the file of the District Munsif Court, Sirkali. Pending the suit, the defendant trespassed into the suit property and occupied the same. Therefore, the plaintiff filed an Application in I.A. No. 1406 of 1994 to amend the plaint for recovery of possession and the same was dismissed. As the plaintiff lost the cause of action on which he based his claim, decided to give up the suit and filed the present suit for recovery of possession.

(3.) The suit was resisted by the defendant claiming that he has been in possession for more than 40 years in the suit property. He claims to have been put in possession pursuant to the agreement of sale from Kalyanarama Iyer and his sons, who are the vendors of the plaintiff. The defendant also contested saying that the suit is hit by the principles of res judicata and for non-joinder of necessary party, viz., Sattanatha Swamy Devasthanam trustee.