PADHALAVADIVU & ORS. Vs. T. RAJAKANIAMMAL & ANR.

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed against the Judgment and Decree, dated 28.02.2003 made in A.S.No.39 of 1998 on the file of the Principal District Court, Tuticorin, reversing the Judgment and Decree, dated 28.07.1997 made in O.S.No.377 of 1995 on the file of the Additional District Munsif, Tiruchendur.

(2.) Originally, the first respondent/plaintiff-Rajakaniammal filed a suit in O.S.No.377 of 1995 on the file of the Additional District Munsif Court, Tiruchendur, against one Kandasamy Nadar, who is the defendant in the suit, for the reliefs of declaration of title and for permanent injunction and in the alternative for recovery of the first schedule property from the defendant. The first respondent/plaintiff submitted that the suit schedule item Nos.1 to 3 originally belonged to one Arumuganainar Nadar, who acquired the suit property by virtue of a sale deed registered as Document No.1631/47 and the plaintiff's father-Narayana Nadar, who is the kartha of the family, purchased the schedule mentioned properties in the name of his son, namely Thirusangu Nadar, through a registered sale deed, dated 05.09.1950 and the same was registered at Kurumbur Registration Office as Document No.2211/50 and the first respondent/plaintiff's father had put up a mud wall with palmyrah leaf house and lived thereon and after registration of the sale deed, Thirusangu Nadar left the house and for 39 years, he was not seen by anyone and he was legally a dead person in the eye of law. The first respondent/plaintiff, who is the sister of the said Thirusangu Nadar, states that her father Narayana Nadar mortgaged the suit second schedule property to the defendant for a sum of Rs.75/- on 02.01.1962 through a registered othi deed, as per Document No.1 of 1960 at Kurumbur Sub-Registrar Office and the same was discharged by her father on 14.02.1963. Her father executed a registered gift deed out of love and affection on 09.01.1963 in favour of the first respondent/plaintiff in respect of the suit properties, which was registered as Document No.61/1963 at Kurumbur Sub-Registrar Office and till date, she was in possession and enjoyment of the suit properties. The thatched house was made of palmyrah leaves and the same was demolished due to heavy rain and she put up a cattle shed in the first item in the suit property. The first respondent/plaintiff further stated that the suit properties are Grama Natham and the first respondent/plaintiff and her father were in possession and enjoyment of the suit property from 1950 and she has paid House-Tax for more than the statutory period and she has also executed an Oothi deed in favour of one Sudarammal and the same was discharged on 25.05.1981, which was registered as Document No.401/1981. The defendant tried to interfere and demolish the cattle shed in the suit property and the same was prevented by the plaintiff. Hence, the first respondent/plaintiff has filed a suit for declaration, for consequential injunction and alternatively for recovery of the suit first schedule property from the defendant.

(3.) The defendant in the suit filed a written statement stating that the suit is not maintainable because the suit is prohibited under Benami Prohibition Act, since the suit properties were purchased by Narayana Nadar in the name of his son Thirusangu and further, it is stated that they have no right over the suit property and the same belonged to the father of the defendant by name Arumuganainar Nadar and the father of the defendant sold the suit schedule items 1 and 2 to one Thirusangu Nadar only for a sum of Rs.50/- and he got right and title over the suit property. The other documents created by Narayana Nadar, father of Thirusangu Nadar are not valid. During the month of March, 1964, when Thirusangu Nadar came to the Village, he orally sold the item Nos.1 and 2 to the defendant for a sum of Rs.85/- and also handed over possession to the defendant. Since the father of Thirusangu Nadar viz., Narayana Nadar had made some arrangements without the knowledge of Narayana Nadar, the defendant, confirmed the oral sale and obtained a document on 27.05.1964. From 1964, the defendant was in possession and enjoyment of the suit schedule item Nos. 1 and 2. In the suit first schedule, there is no house and the defendant had put up cattle shed and also constructed water pipe and he is in possession and enjoyment of the same. The gift deed alleged by the first respondent/plaintiff is not proved and she is not entitled for the same and she is not living in that place and hence prayed for dismissal of the suit.