CHINNAVENGAVAYAL HAMLET PILLAYARANDAL SRI KAILASAVINAYAGAR KOVIL THROUGH ITS HEREDITARY TRUSTEE S P PALANIAPPA CHETTIAR KANDANOOR KARAIKUDI TALUK Vs. C RAMIAH PILLAI

JUDGEMENT

(1.) THE plaintiff in O.S. No. 106/80 on the file of the District Munsif, Devakottai, is the appellant. He filed the suit against the respondent in the second appeal for declaration and recovery of possession of the suit property on the following averments: THE suit property was situate in Pillaiyarandal Village in the hamlet of Chinnavengavayal. THE suit village was granted as Iruwaram Pannai Inam Village under T.D. No. 867. THE appellant was Inamdar in continuous possession and enjoyment. It had also obtained prescriptive title. After 1947 Act the nearby villagers began to encroach the land in the suit village claiming kudiwaram rights in those lands. THE appellant filed a suit O.S. No. 151/57 before the District Munsif, Devakottai, for declaration and recovery of possession and the said suit was decreed and the appeal preferred by the defendants in that suit and the Letters Patent Appeal in the High Court, Madras, ended in favour of the appellant. Notwithstanding that some of the defendants in the suit again attempted to disturb the possession of the appellant necessitating the filing of another suit in O.S. No. 360/67 by the appellant for a permanent injunction against them and a decree was passed on 12.9.1973. In the Settlement proceedings also patta was granted in favour of the appellant, the respondent in the Second Appeal committed trespass into the suit property on 10.2.1973 and attempted to construct a house. THE appellant preferred a complaint to the police and in the police enquiry, the respondent gave an undertaking that he would not construct a house. On such assurance having been given, further proceedings were stopped. However, when the trustee of the appellant temple was not in town in the month of February-March, 1973 the respondent constructed a house in the suit property and also a cattle shed. THEre was a notice issued for which there was no response. THE suit was therefore filed.

(2.) THE respondent resisted the suit contending inter alia that he was not a party in the earlier suits, that the decrees in those suits would not bind him and that the house and the cattle shed were in S. No. 236 in Pillaiyarandal Village. Patta had been granted to the appellant, but the same having been done without the knowledge of the respondent, would not affect the respondent's right or possession of the suit property. THE alleged attempt to commit trespass and the complaint to the police and the undertaking alleged to have been given by the respondent were all false. THE respondent has constructed a thatched house in the suit property long back and residing there continuously for more than the statutory period to the knowledge of the appellant. After sometime, he removed the thatched shed and constructed a tiled house. He was residing in that house openly without any objection continuously for more than the statutory period and he had acquired title by prescription. THE notice had been suitably replied. THEre was no cause of action for the suit. He was also paying tax for the suit property for a long time. THE suit has been filed by the appellant and to grab his property under threat. THE suit was liable to be dismissed.

(3.) MR. AR.L. Sundaresan, learned counsel for the appellant, submitted that the lower Appellate Court erred in holding that the suit property had not been properly described overlooking that what all Rule 3 of Order 7 of the Code of Civil Procedure required was that the plaint should contain a description of the property sufficient to identify it. As regards the title, the learned counsel submitted that the lower Appellate Court erred in holding that Exs.A-1 to A-4, the judgments in the prior suits, were inadmissible under Sections 41 to 44 of the Evidence Act, 1872. According to the learned counsel, the earlier judgments had upheld the title of the appellant in the suit property and that they were not only admissible under Section 13 of the Evidence Act, 1872, but also they were admissible to prove the fact that the appellant had in execution taken delivery of the property through Court and had been in possession within twelve years and therefore, as a person in prior possession, the appellant was entitled to the suit property. The learned Judge overlooked that Ex.A-5, the certified copy of the delivery warrant and the athakshi in E.P. No. 615/61 in O.W. No. 151/57 was not objected to when produced as being a certified copy and therefore, it could not be discarded as having been marked wrongly in the trial Court. The lower Appellate Court ought to have held that Ex.A-6 order granting patta in favour of the appellant had become final in so far as the respondent were concerned. Having held that the first respondent had not proved adverse possession and prescription, it ought to have held that he was liable to be evicted in view of the orders passed in Exs.A-6 and A-5.