- (1.) BEING aggrieved by Judgment in A.S.No.12/2002 dated 06.02.2006 reversing the Judgment of trial Court in O.S.No,25/2000 and thereby decreeing Respondent-Plaintiff's suit for declaration and permanent injunction, Defendant has preferred this Second Appeal.
(2.) CASE of Respondent-Plaintiff is that his father Ganesan purchased suit properties in S.F.Nos.277/14A and 277/18A along with other properties under Ex.A1 sale deed [15.7.1964]. Further case of Plaintiff is that a canal divides the properties of Plaintiff and Defendant and Ex.A1 sale deed mistakenly refers the extent purchased as 33 cents in S.F.No,277/14 and 21 cents in S.F.No,277/18 whereas the actual extent purchased was 37 cents in S.F.No,277/14 and 40 cents in S.F.No,277/18. Further case of Plaintiff is that as per Exs.A3 and A12, revenue records were also mutated infavour of Plaintiff's father Ganesan for the said extent of 37 cents and 40 cents respectively. According to Plaintiff, his father Ganesan had been in possession and enjoyment of the entire properties - 37 cents in S.F.No,277/14A and 40 cents in S.F.No,277/18A. Stating that Plaintiff and his brother Rajamanickam are in continuous possession and enjoyment of the suit properties for more than the statutory period and that Plaintiff has perfected title by adverse possession, Plaintiff has filed the suit for declaration and permanent injunction. Resisting the suit, Defendant has filed written statement contending that suit is not maintainable after the lapse of more than three decades and suit is liable to be dismissed on the ground of non-joinder of necessary party and co-owner, brother of the Plaintiff. According to Defendant, her mother [Pachayammal] was given 47 cents in S.F.No,277/14 and 61 cents in S.F.No,277/18 and Defendant's mother was in possession and enjoyment of the same till it was settled infavour of Defendant by Ex.B3 settlement deed dated 15.10.1997. Pursuant to Ex.B3 settlement deed, Defendant is in possession of the properties - 47 cents in S.F.No,277/14 and 61 cents in S.F.No,277/18. According to Defendant, Vaikkal is running in the Defendant's land and it was created for the purpose of draining rain water from Defendant's land and Plaintiff's family has got nothing to do with the said Vaikkal. Defendant has also referred to the earlier litigation between her mother Pachayammal and one Meyyappa Chettiar in O.S.No.1830/1973 in which Defendant's mother's right was declared by Judgment of the Court dated 25.02.1975 to an extent of 47 cents in S.F.No,277/14 and 61 cents in S.F.No,277/18. Contending that Plaintiff cannot claim more than the extent purchased under Ex.A1 sale deed, Defendant prayed for dismissal of suit. On the above pleadings, four Issues were framed in the trial Court. Plaintiff himself examined as PW1 and one Thangarasu was examined as PW2. Exs. A1 to A12 were marked on the side of Plaintiff. Defendant herself examined as DW1 and one Semban was examined as DW2. Exs.B1 to B20 were marked on the side of Defendant. Advocate-Commissioner's report and plan were marked as Exs.C1 and C2 respectively.
(3.) UPON consideration of oral and documentary evidence, trial Court held that Ex.A2 is the Chitta issued in the name of Plaintiff's father Ganesan and Defendant's mother Pachayammal and therefore, Plaintiff cannot be said to have established right in S.F.No,277/14A - 37 cents and S.F.No,277/18A - 40 cents. Trial Court further held that another co-owner, Plaintiff's brother [Rajamanickam] has not been impleaded as Plaintiff and the suit is not maintainable. Referring to Ex.B19 decree in O.S.No.1830/1973, trial Court held that even in 1975, Defendant's mother's right in S.F.No,277/14 - 47 cents and S.F.No,277/18 - 61 cents was upheld. Trial Court negatived Plaintiff's contention that he is bound by the Judgment in O.S.No.1830/1973 and on those findings, trial Court dismissed Plaintiff's suit. Being aggrieved by dismissal of suit, Plaintiff filed an appeal in A.S.No.12/2002. Referring to Ex.A3 Patta [10.11.1995] and Ex.A12 Patta [22.01.1985], lower Appellate Court held that Plaintiff is entitled to 37 cents in S.F.No,277/14A and 40 cents in S.F.No,277/18A. Lower Appellate Court further held that as against Ex.A3, Defendant had not produced any document to show that she is entitled to 37 cents in S.F.No,277/14A and 40 cents in S.F.No,277/18A. Observing that if no evidence was adduced by the Defendant, issue must be found against the Defendant, lower Appellate Court reversed Judgment of trial Court and decreed Plaintiff's suit for declaration and permanent injunction.;