SIVALOKAM ESTATE KALIYAL Vs. DEVADASAN

JUDGEMENT

(1.) THE defendant Sivalokam Estate is the appellant in this second appeal. THE suit was dismissed in the trial Court but it was decreed in the first appellate court.

(2.) THE suit relates to 1 acre 25 cents in Survey No. 2894, Kaliyar Village . THE entire extent of 19 acres 41 cents in the said survey number originally belonged to Chennathu Veedu of munchiri. A partition was effected among the members of the tarwad on 6. 11. 1928. After this partition the members of the tarwad sold different shares to different purchasers. THE Plaintiff purchased a specific portion of 1 acre 25 cents from the owners thereof viz. , Kesava Pillai Krishna Pillai and others on 7. 4. 1959 under Ex. A. 1 sale deed. THE defendant Sivalokam estate purchased 8 acres 90 cents in the eastern - most portion of the suit survey field. According to the plaintiff this is on the east of the said 1 acre 25 cents purchased by him. THE land on the west of this plaintiff's 1 acre 25 cents was purchased by some other persons. One of them by name David filed a suit O. S. No. 502 of 1965 for redemption of a mortgage and recovery of possession and also for demarcating the area belonged to him. In that suit the present plaintiff was the eleventh defendant and the present defendant was the eighth defendant. A commissioner was appointed in that case and he on inspection found that the purchasers of different extents of land were not in possession of the lands as described in the documents and it was discovered by him that the present plaintiff was in possession of a portion of land covered by the sale deed taken by the plaintiff in that case i. e. , O. S. No. 502 of 1965 and the area covered by the sale deed of this plaintiff was found to be a portion that was in possession of 8th defendant in O. S. No. 502 of 1965 i. e. , the present defendant. THE trial court on the basis of the Commissioner's report and plan decreed the suit O. S. No. 502 of 1965 but on appeal the first appellate court allowed the appeal and dismissed the suit, but however the High Court in the Second Appeal Nd. 2186 of 1972 by its Judgment dated 19. 12. 1975 allowed the second appeal and restored the trial court's judgment and decreed the suit. THE High Court made an observation that if the 8th defendant therein i. e. , the present defendant is in possession of any portion of the land purchased by the 11th defendant therein i. e. , the present plaintiff, it is open to the latter to take necessary steps to get possession of that portion. Actually the whole of the area purchased by the plaintiff happens to be in possession of the defendant. Now the plaintiff has filed this suit for recovery of 1 acre 25 cents purchased by him which is in possession of the defendant.

(3.) K. Ramamurthy, learned counsel for the appellant-defendant contends that the first appellate Court has not understood the defendant's case properly and mis-interpreted the Judgment of the high Court in S. A. No. 2186 of 1972 out of the suit O. S. No. 502 of 1965 which was filed by David in which the present plaintiff was the 11th defendant and the present defendant was the 8th defendant. The suit O. S. No. 502 of 1965 was filed by the plaintiff therein for redemption of mortgage and for demarcating the boundaries of his land in the survey number and in that case it was found that the land purchased by the plaintiff therein was in occupation of the 11th defendant therein i. e. , the plaintiff here and that he has not pleaded any adverse possession and therefore the plaintiff therein was entitled to a decree for fixing the boundaries of the land that was in possession of the plaintiff here as his land. It is also observed by the High Court that, 'if the 8th defendant is in possession of any property belonging to the 11th defendant either in part or in entirety, it is open to the 11th defendant to take necessary steps to get possession of that property from the 8th defendant, who had to claimed in this suit anything more than what he has actually purchased under Ex. B. l to Ex. B. 3 and Ex. B. 10.'