SENGA PILLAI AND ORS. Vs. VARADARAJAN AND ORS.

JUDGEMENT

(1.) The two appeals arise out of O.S. No. 578 of 1971 on the file of the Sub -Judge of Salem. A.S. No. 902 of 1974 has been filed by defendants 1 and 2 while A.S. No. 304 of 1976 has been filed by the plaintiff. The C.R.P. has been filed by defendants 1 and 2 against the dismissal of I.A. No. 1299 of 1973 filed by them.

(2.) The facts of the case are briefly as follows: The plaintiff, the 3rd defendant and 4th defendant are brothers. The suit property belonged to the plaintiff and 3rd defendant. The suit property was acquired in their names by their father on 2nd June, 1948 under Exhibit A -1 sale deed. At the time of the acquisition of the property, the plaintiff and 3rd defendant were minors. The plaintiff, had, therefore, right over 1/2 share in the suit property while the 3rd defendant was entitled to the other 1/2 share. While so, on 26th September, 1956 Meenakshi Ammal, the mother of the plaintiff and the 3rd defendant executed a registered lease of the suit property in favour of defendants 1 and 2. The lease was for a period of 4 years. Thereafter defendants 1 and 2 took a lease of the suit property for a further period of 4 years from the 4th defendant. The said extension of lease also expired. However, defendants 1 and 2 continued to be in possession of the suit property. The said leases by the plaintiff's mother and the 4th defendant are said to be not binding on the plaintiff. The plaintiff did not receive any benefit from out of the said leases. It is the plaintiff's further case that after he became a major he took possession of his share from defendants 1 and 2 in 1968. But defendants 1 and 2 filed O.S. No. 1435 of 1968 in the District Munsif Court, Namakkal, for an order of permanent injunction and taking advantage of the injunction, they forcibly entered into possession of the suit property. Defendants 1 and 2 are in possession only in the capacity of trespassers. The plaintiff has filed the suit for partition and recovery of his 1/2 share in the suit property since it is no longer possible to conveniently enjoy this property in common with the 3rd defendant. The plaintiff has claimed Rs. 10,000 from defendants 1 and 2 towards past mesne profits and has also claimed future mesne profits.

(3.) Defendants 1 and 2 in their written statement have pleaded that they are cultivating tenants and they are entitled to the benefits of the Cultivating Tenants Protection Act. It is stated that they had been in continuous possession of the property ever since 1956 and that their possession was never interrupted at any time. According to defendants 1 and 2, the rent of Rs. 933.36 per year is the fair rent and the plaintiff is not entitled to anything more. The plaintiff is not entitled to physical possession of the property. An additional written statement has been filed by defendants 1 and 2. It is stated in the additional written statement that if the lease by the mother is considered void, the mother must be deemed to have set up a hostile title to the suit property with effect from 15th September, 1956. Consequently it is pleaded that the plaintiff has prescribed title by adverse possession to the lessee's interest under Article 65 of the limitation Act, 1963. It is further pleaded that the suit itself is barred by limitation not having been filed within 3 years of the plaintiff attaining majority.