BALASUBRAMANIAN Vs. VIJAYALAKSHMI

JUDGEMENT

(1.) The 2nd defendant in O.S No. 49 of 1996 on the file of Sub Court, Ambasamudram (later transferred and renumbered as O.S No.44 of 2004 on the file of the Principal District Munsif Court, Ambasamudram) is the appellant in this second appeal. The suit was filed by respondents 1 to 9 herein for declaring that the suit property belongs to them and for recovery of possession from the 1st defendant, namely, Subramania Nadar. During the pendency of the suit, Subramania Nadar sold the suit property in favour of the appellant who got impleaded as the 2nd defendant on 3/10/1997.

(2.) The stand of the plaintiffs is as follows : The suit property belonged to Chidambaram Pillai; the 1st plaintiff, Vijayalakshmi was his second wife, the first wife being Gomathi @ Vannamuthammal; the other plaintiffs were born to Vijayalakshmi through Chidambaram Pillai; Chidambaram Pillai executed settlement deed dtd. 30/3/1959 settling the suit property in favour of the plaintiffs ; Chidambaram Pillai and the 1st plaintiff were residing in the said property; Chidambaram Pillai passed away on 25/6/1981; suppressing the said settlement deed, Vannamuthammal, the 1st wife of Chidambaram Pillai mortgaged the suit property in favour of the 1st defendant on 2/4/1987; upon coming to know of the same, the 1st plaintiff issued notice dtd. 22/7/1987 to the 1st defendant cautioning him; the 1st defendant did not respond; on 26/6/1991, the 1st defendant obtained a sale deed from Vannamuthammal and her daughters; since Vannamuthammal and her daughters did not have any right to alienate the suit property in favour of the 1st defendant, the plaintiffs filed the suit.

(3.) The plaintiffs filed pauper OP in the year 1991. It was numbered as POP No.34 of 1992 on the file of the Sub Court, Tenkasi. It was later transferred to Sub Court Ambasamudram and numbered as O.S No.49 of 1996. During the pendency of the suit, the 2nd defendant purchased the suit property from the 1st defendant and got impleaded in the year 1997. It was then transferred to Principal District Munsif Court, Ambasamudram. The 1st defendant remained exparte. The 2nd defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. The 1st plaintiff examined herself as P.W.I. Ex.Al to Ex.A5 were marked. The 1st defendant though remained exparte, entered the witness box in support of the 2nd defendant. He was examined as D.W. 2. Three other witnesses were examined on the side of the defendants. Ex.Bl to Ex.B20 were marked. After consideration of the evidence on record, the trial court by judgment and decree dtd. 29/12/2005 decreed the suit as prayed for. The defendants were directed to handover possession of the suit property to the plaintiffs. Aggrieved by the same, the 2nd defendant filed A.S.No.42 of 2006 before the Sub Court, Ambasamudram. By the impugned judgment and decree dtd. 30/1/2010, the decision of the trial court was confirmed and the first appeal was dismissed. Challenging the same, this second appeal came to be filed.