- (1.) The plaintiff in O.S.No.136/2001 on the file of the Principal District Munsif, Karaikal is the deceased first appellant in the present second appeal. She filed the above said suit against the respondent herein/defendant for the following reliefs: a) directing the respondent to vacate and hand over possession of the suit property after removing the thatched hut put up by her in the suit property; b) directing the respondent to pay mesne profits at the rate of Rs.50/- per month from the date of suit till the date of actual delivery of possession of the suit property to the appellant; and c) for costs
(2.) The above said prayer was made based on the following plaint averments: i) The deceased first appellant was the owner of a larger extent of property which includes the suit property, namely a small portion out of the above said larger extent, having purchased the same under the sale deed dated 19.09.1975. Sometimes after the purchase, the deceased first appellant put up a hut and accommodated her daughter Parvathi, who had been given in marriage to one Vivekanandan. A few years prior to the filing of the suit, the said Parvathy died leaving her only child in the custody of the deceased first appellant. Thereafter, the son-in-law of the deceased first appellant started to have a wayward life and he started to live with one lakshmi, the present respondent. However the nature of arrangement between them was not known to the deceased first appellant. ii) After the death of Parvathy, by virtue of the permission granted by the deceased first appellant, Vivekanandan occupied the hut as a permissive occupant. On the death of Vivekanandan, the licence granted in his favour got terminated. However, Lakshmi, the respondent herein continued to occupy the same defying the demand made by the deceased first appellant to vacate and hand over the suit property. Though the hut had been erected by the deceased first appellant, of late, it came to her knowledge that the hut was assessed for tax in the name of deceased Vivekanandan, the son in law of the deceased first appellant and the respondent staked a claim that the assessment for the hut should be changed in her name. Since she could not produce any proof to show that she was the wife of deceased Vivekanandan or in any other manner entitled to such change of tax assessment, her request for mutation was refused, pursuant to which she filed a suit on the file of District Munsif Court, Karaikal in O.S.No.324/1984 for a direction to change the tax assessment to her name. The suit was dismissed and an appeal filed by her in A.S.No.29/1996 was also dismissed by the Additional District Judge, Puducherry at Karaikal. iii) In addition, the respondent was also not living in the suit property and the suit property remained vacant and unoccupied on the date of filing of the present suit. However, in order to avoid problems, the deceased first appellant chose to file the suit for the relief of eviction based on her title and revocation of the licence granted by her in favour of her son-in-law Vivekanandan and also for mesne profits at the rate of Rs.50/- per month.
(3.) The suit was resisted by the respondent herein by filing a written statement containing averments, which are in brief, as follows: i) The plaint allegation as if the respondent/defendant was in occupation of 200 sq.ft. alone was wrong and mischievous. She had been in possession and enjoyment of the house site measuring about 180 Kuzhis, in which she had put up her house with brick walls and thatched roof occupying 4 Kuzhis, equivalent to 576 sq.ft. The rest of the extent is being used by her as kitchen-garden for raising seasonal vegetables. She, along with her late husband, used to store the haystack obtained from the cultivation of some other lands in Subramaniapuram in the vacant space abutting the thatched house. They also used a portion of the said property as cattle shed for keeping the cattles owned by them. ii) The house was assessed for tax in the name of her husband Vivekanandan. A larger extent of 180 Kuzhis is in possession of the respondent, whereas the suit has been filed for recovery of a smaller portion, more or less like an island. There is a distance of 15 feet between the road and the house. Hence the suit in respect of an island like portion out of the larger extent cannot be maintained. The value of the property per Are is Rs.20,000/- and the value of the portion said to be in illegal possession of the respondent shall be more than Rs.1,50,000/-. Hence the question regarding valuation of the relief and the sufficiency of the court fee paid should be tried as a preliminary issue. Since the house is located at a distance of 15 feet from the road, the pathway connecting the road and the house should have also been included in the description of property and the failure to do so would affect the maintainability of the suit. Moreover Vivekanandan was holding the suit property against the appellants or the real owners and his possession had excluded others from the suit property. iii) The respondent married Vivekanandan during the year 1986 and she gave birth to a child named Muthu, who was 17 years old at the time of filing of the written statement. Before the filing of the suit, at no point of time, the first appellant interfered with the respondent's possession of the suit property and such a situation prevailed for more than 17 years. Even during the life time of Vivekanandan, his possession of the suit property was open, hostile and adverse to the right, if any of the appellants. iv) The appellants have also suppressed the fact that another suit in between the deceased first appellant and another party in respect of the very same land ended against the deceased first appellant. The respondent along with her son Muthu is occupying the suit property. Though the said fact was known to the deceased first appellant, the respondent's son Muthu had not been added as a party and hence the suit is liable to be dismissed as bad for non-joinder of necessary party. The survey numbers and boundaries have been wrongly mentioned and the description of the property furnished in the plaint is not correct. The deceased first appellant never exercised any act of ownership over the suit property. The deceased first appellant chose to produce only a copy of the sale deed dated 19.09.1975 and no reason has been assigned in the plaint for the non-production of the original sale deed. In any event, the suit filed by the deceased first appellant herein is barred by limitation. The deceased first appellant was not entitled to the relief of recovery of possession and also the relief of mesne profits. The suit filed for the recovery of possession without declaration of title is not maintainable. Based on the above said averments made in the written statement she had pleaded for dismissal of the suit.;