RAMALINGA VELAR Vs. PARVATHAM ANNI

JUDGEMENT

(1.) The defendant in O.S.No.90 of 1987 on the file of the District Munsif at Nannilam is the appellant in the second appeeal. Respondents 1 and 2 filed the suit against the appellant for declaration and permanent injunction or in the alternative for recovery of possession in respect of the suit property which was originally two items - (1) S.No.13(I) 12 cents, and (ii) S.No.13(J) 13 cents - now a single S.No.21/10 - 26 cents of wet lands in Anandanallur village. It will be easier to narrate the facts with a genealogy. The genealogy is as follows:

(2.) There was a partition among Kanagasabai Mudaliar @ Chinnappa Mudaliar, his brother Ayya Mudaliar's sons Rajagopala Mudaliar and Singaravelu Mudaliar, and another brother Velu Mudaliar's son Vaithialinga Mudaliar on 25.6.1988. In that partition, the first schedule property was allotted to Kanagasabai Mudaliar @ Chinnappa Mudaliar, the second schedule to Vaithialinga Mudaliar, and the third schedule to Rajagopal Mudaliar and Singaravelu Mudaliar. The suit was divided into north and south. The southern half fell to the share of Vaithialinga Mudaliar and northern share to Rajagopal Mudaliar and Singaravelu Mudaliar. Rajagopal Mudaliar had no male issue. In Survey and Settlement Register, suit first item was registered in Rajagopal Mudaliar's name and suit second item in Vaithialinga Mudaliar's name. In the partition deed, the suit property was shown as 'Kalladi'. The southern owner Vaithialinga Mudaliar was enjoying the property by leasing it out. After his life time, his son Renganatha Mudaliar was in possession and after him Vaithialinga Mudaliar and Venkatachala Mudaliar (the second plaintiff in the suit), were in possession. There was a further partition between Renganatha Mudaliar's sons Vaithialinga Mudaliar and Venkatachala Mudaliar (the second plaintiff). The property fell to the second plaintiff's share. He has been in enjoyment since 1954. The northern portion fell to the share of the first plaintiff/Parvatham, wife of Thiagaraja Mudaliar, in a partition between her and her son Kuppiah. In 1924, there was a re-survey, S.Nos.13(I) and 13 (J) were measured and R.S.No.21/10 was given. There is also a ridge between the northern and the southern parts. During the UDR proceedings, patta was given to the defendant without reference to the plaintiffs. The parties did not ascertain the possession. In February 1987 the plaintiffs were harvesting CR 1009 paddy. There was interference by the defendant, necessitating the filing of a police complaint. There was no action taken. The suit came to be filed. Pending suit, there was a forcible trespass by the defendant on 30.4.1987. The prayer was amended as one for recovery of possession.

(3.) The defendant filed a written statement and an additional written statement, contending as follows: