PATTAMMAL Vs. PALANISWAMY CHETTIAR

JUDGEMENT

(1.) THE plaintiffs in O. S. No. 281 of 1978, District Munsif's Court, Mayuram are the appellants in this second appeal. That suit was paid by the appellants for recovery of possession of a portion measuring 1708 sq. ft. in door No. 10, Velalarkoil East Street, Mayuram Town and damages for use and occupation from December, 1977 till the date of delivery of possession together with the value of the trees cut and bricks removed by the respondent in a sum of Rs. 685.

(2.) THE circumstances, under which the suit was instituted are as follows:one Narayana Chettiar had two sons, Kanakasubai and Sambasiva. Kanakasubai's wife was one Anjalai,. and they had a son Rajagopala chettiar, who died on 16. 3. 1944, leaving behind him his two widows, Pattammal and Rajammal, the appellants herein. Muthiah was the son of Sambasiva and his son was one Kalyanasundaram Chettiar. THE respondent is the son of kalyanasundaram Chettiar. THE suit property belonged to Rajagopala Chettiar, the husband of the appellants. THE appellants, along with their mother-in-law, anjalai Ammal, filed O. S. No. 46 of 1944, Sub Court, Mayuram, against kalyanasundaram Chettiar and others for partition and separate possession of their half share in the properties detailed in schedules'to a-5'in that suit and for recovery of possession of the moveables in schedules''b'and''b-1'Door No. 10 in Velaiar East Street was item 7 in A schedule in that suit. Kalyanasundaram chettiar also instituted another suit in O. S. No. 4 of 1945, Sub Court, Mayuram, against the appellants and their mother-in-law, Anjalai Ammal and others prayed for partition and separate possession of the properties in that suit and praying for the allotment of 8 mahs each to the appellants and their mother-in-law Anjalai Ammal and the rest to Kalyanasundaram Chettiar. Both the suits were tried together and the suit instituted by Kalyanasundaram Chettiar was dismissed, while a preliminary decree for partition was granted in favour of the appellants and their mother-in-law Anjalai Ammal on 5. 9. 1945. In the course of the final decree proceedings in O. S. No. 46 of 1944, Sub Court, mayuram, a Commissioner was appointed and under the final decree, the appellants and their mother-in-law Anjalai Ammal together were allotted the house bearing door No. 10, while, Kalyanasundaram Chettiar, father of the respondent, was allotted door No. 9. Subsequently, the appellants and Anjalai ammal took delivery of possession of the properties allotted to them and a partition was entered into on 6. 8. 1947 between the appellants and Anjalai Ammal in respect of the lands; but door No. 10 was however not divided. According to the case of the appellants, they and Anjalai Ammal were living in door No. 10, and Anjalai Ammal died and as her heirs, the appellants became entitled to the share of Anjalai as well. Some time in Aavani, 1968, door No. 9, where the respondent was living, fell down and he sought permission from the appellants to reside in the suit property forming a portion of door No. 10, and he was orally permitted to occupy the suit property. Subsequently, the respondent developed a hostile attitude towards the appellants and attempted to claim ownership over the suit property and thereupon, the appellants demanded vacant possession of the suit property from the respondent; but he did not agree to it. In 1977, the portion of the house permitted to be occupied by the respondent, fell down and the respondent high-handedly took away bricks worth Rs. 650 and also cut some trees. THE portion in the occupation of the respondent, according to the appellants, is capable of fetching a monthly rent of Rs. 35 if let out. THE appellants demanded the respondent to vacate the house and also claimed the value of the bricks as well as damages for use and occupation by issue of a notice dated 22. 2. 1978 and as the respondent sent a reply containing false allegations, the appellants, after sending a rejoinder instituted the suit praying for the reliefs set out earlier.

(3.) ON the other hand, learned counsel for the respondent submitted drawing attention to the evidence of P. W. 1 that she had admitted the will executed by Anjalai Ammal in favour of the respondent and had also stated that she had no objection whatever to the respondent enjoying the property belonging to Anjalai and under those circumstances, it was not necessary to prove the will when it had been admitted by P. W. 1.