IN THE PRINCIPAL SUB COURT, MAYILADUTHURAI

Before : Mr.P.Gowthaman, B.A., B.L., Principal Sub Judge

2049, Thiruvalluvar Year, Sri Vihari Year, 6th day of Panguni Month.

Thursday the 19th day of March 2020

Appeal Suit No.69 / 2016

O.S. No.99/2006

Kumararaj represented by his Power Agent Mr.Natarajan … Appellant / Plaintiff

-Vs.-

1. Vijayalakshmi
2. Selvaraj … Respondents / Defendants

ON APPEAL FROM THE DECREE AND JUDGEMENT OF DISTRICT MUNSIFF

COURTK, SIRKALI, AGAINST THE SUIT No.113 / 2006 DATED : 23.01.2018

PARTIES IN THE LOWER COURT:

Kumararaj represented by his Power Agent Mr.Natarajan … Plaintiff

-Vs.-

1. Vijayalakshmi
2. Selvaraj … Defendants

This appeal came on 06.03.2020 before me for final hearing in the presence of
M/s.R.Sivapunniyam, B.Chandrakumar and K.Mohanasundaram, counsels for the appellants and
of M/s.E.Selvaraj and R.Kakshinamoorthy, counsels for the 1st respondent and 2nd respondents
respectively was set exparte. In the original suit he was exempted to send summons upon
perusing the arguments on boths sides, material documents on record and having stood over for
consideration till this day, the court delivered the following:

JUDGEMENT

1. This appeal has been preferred by the appellant / plaintiff against the judgement and
decree passed by the learned District Munsiff Court Judgek, Sirkali in O.S. No.113 / 2006
on 23.04.2018. This appeal filed by the appellant to allow the same.
2. Relief in Original Suit in the Trial Court:
The Original Suit has been filed for Permanent Injunction against the defendants not to
interfere with the peaceful possession and enjoyment of the suit property.
3. Brief facts of the Amended Plaintiff Copy filed in the Trial Court as follows:
 It has been stated that the suit property situated at Sirkaly Taluk, Edakkudi – Vadapathi
Vattam, Vaidheeswaran Koil West Street, within the jurisdiction of thei Hon’ble Court.
Plaintiff is the owner of the suit property consisting of tiled building including backyard.
In the beginning the entire suit property belonged to the plaintiff’s father. He was
enjoying the suit property for the past 35 years as a sole owner and also the plaintiff’s
father has transferred the patta in his name. 1 st defendant induced the 2nd defendant to
disturbed the plaintiff and hence the second defendant has been impleaded as 2 nd
defendant in the said suit. Out of love and affection, the plaintiff’s father had settled the
suit property in favour of the plaintiff by way of settlement deed dated 17.09.2005 and
the same has been registered. House tax receipts also stands in the name of the plaintiff.
The plaintiff often visited to several places and hence he appointed his brother as his
power agent to maintain the suit property. Brother of the plaintiff has been running the
STD booth, petty shop and a cool drinks shop in the suit property. First defendant is the
sister of plaintiff’s father and has no right in the suit property. Even if she had the right in
the suit property, plaintiff’s father has been enjoying the possession for more than 30
years and hence the defendant has lost her rights. On 24.04.006 defendant has brought
some rowdy elements and disturbed the peaceful possession of the suit property, since the
defendant has no right regarding the suit property. To prevent the interference the
plaintiff has filed the said suit.

4. Brief facts of the Statement filed by the defendant in the Trial Court as follows:
It has been stated that the defendant has filed the suit to hand over the possession and also
for Permanent Injunction in O.S. No.99 / 2006, the name of plaintiff’s father Vedhaiah
Mudaliar. To safeguard from the said case plaintiff’s father Vedhaiah Mudaliar has
created the forged documents without having any right in the suit property and he has
executed a settlement deed dated 17.09.2005. Hence the Survey No., boundaries and the
extent of the properties in the suit property not given properly. And also have falsely
stated that the said Vedhaiah Mudaliar has enjoyed the house in the suit property as
absolute owner without anybody’s disturbance. Also thee patta in the name of the
plaintiff is not true. In the said suit property, brother of the plaintiff (power agent of
plaintiff) has been running the STD booth, petty shop and coold drinks shop is also false.
Defendant is the sister of the plaintiff’s father and has no right in the suit property is
false. Either the plaintiff or his son never been enjoyed the suit property as owner
continuously for 30 years is true. Plaintiff has stated that his father has got the right over
the suit schedule property. if so he would have impleaded his father in the suit property.
hence the suit has been affected for non-joinder of parties. The suit property belonged to
Veerabadra Mudaliar from the Keezhperumpallam village. The said Veerabadra Mudaliar
is the father-in-law of the defendant. The said Veerabadra Mudaliar has executed a
 registered will dated 16.04.1950 and as per the registered will, the suit property and the
house were allotted for the charity according to Schedule – E property, to distribute food
for 20 poor people on each and every monthly Karthigai star day from the net income of
the property (after the deduction of Kisti and other expenses). After the above said period
of Veerabadra Mudaliar, Pavadai Mudaliar has administered the management as an agent,
but he has not administered the same satisfactorily as per the will and hence Alamelu
Ammal, the second wife of Veerabadra Mudaliar has taken over the charge. After her her
adopted son Mr.Govindarju Mudaliar, husband of the defendant has taken the suit
property and carrying out the charity work. Since he was frequently travelling and could
not look after the charity work, he appointed the father of the plaintiff as an agent and
permitted him to reside in one portion fo the suit property to carry out the charity work
continuously by way of oral agreement. As per the oral agreement Vedhaiah Mudaliar
was permitted to stay there in one portion for a montly rent of Rs.50/-. Plaintiff’s father
has been helping the plaintiff to do the charity work of Annadhanam . Govindaraju
Mudaliar died in the year 2002 and after his death the defendant has taken the suit
property as a legal heir. The defendant has done the annadhanam charity work with the
help of plaintiff’s father. In this juncture on 16.11.2005, when the charity work of
annadhanam began, plaintiff’s father tried to prevent the same, but the defendant has
overcome the obstacle and completed the formality of the charity work. Hence the
defendant has filed the suit No.99 / 2006 against the father of the plaintiff. To escape
from the case he has filed this suit. Hence the suit may be dismissed with cost.

5. On the above pleadings, the Trial Court has framed the following issues:
1. Whether the suit property was under the possession and enjoyment of the plaintiff?
2. Whether the plaintiff is entitled to ask for permanent injunction as prayed?
3. What other reliefs are eligible to the parties?

6. In O.S. No.99 / 2006 and O.S. No.113 / 2006 at the Trial Court, four witnesses were
examined on the side of the plaintiff. One witness hwas examined on the side of the
defendant. on the plaintiff’s side 12 documents have een marked and on the defendant
side 16 documents have been marked.

7. Trial Court Decision:

After analyzing the case, the Trial Court has dismissed the suit and passed the judgement.

8. The following grounds were stated by the appellant:

The judgment and decree of the Trial Court Judge is contrary to law, weightage of
evidence and opposed to the probabilities to the case. Vedhaiah Mudaliar,k father of the
appellant has purchased the suit property on 20.01.1976 from Govindaraju the husband of
the first defendant and has been enjoying the property since the date of purchase as an
absolute owner and transfeered the patta hi his name. Thereafter as per Ex.B.13,
settlement deed dated 17.09.2005 he has settled the suit property to and in favour of the
appellant. The same has not been considered by the Trial Court. Father of the appellant
has purchased the suit property and residing in that premises. He has constructed shop in
front of the suit property and doing the business and to confirm the same Ex.B1 to B5
have been marked. The Trial Court ought to have considerd the Ex.B6 to B.12 in proper
manner, the court could have accepted that the said Vedhaiah Mudaliar has got the suit
property and enjoyed by way of adverse possession and the court would have passed the
judgment that the said Vedhaiah Mudaliar has full right of possession over the suit
property. Govindaraju Mudaliar has executed unregistered sale deed in favour of
Vedhaiah Mudaliar and has handed over the suit property to him. If the said deed is not
validk, Vedhaiah Mudaliar has enjoyed the suit property in adverse possession from the
year 1976 to 2005. If this is considered in a proper way, the court should have decided
that he has every right by way of adverse possession. At the time of cross examination, P
P.W.1 has admitted that the suit property has not been mentioned in the documents of
Ex.A1 to A9. Through Ex.B8 & B9, sone of the first respondent has issued the notice to
the appellants in the year 1997. In the said notice he has stated that the permission has
been cancelled and they should have to vacate from the suit property. There is no
mentioning about the rent. The court would have come to the conclusion that suit has nto
been filed within 12 years from the date of notice for the recovery of the possession.
Hence the suit was barred by limitation. P.W.2 in his chief examination has stated that he
does not know about the details of the building construction made by the appellant. In
Ex.A3 ther is no mentioning about the charity and the same has been accepted by him.
The Trial Court has not considered the charity work of annadhanam has been done
outside of the suit property in a proper way. The Lower Trial Cour should have
considered that Vedhaiah Mudaliar has taken the suit property based on the unregistered
sale deed in the year 1976 legally. He has not been enjoying the property from the date of
purchase, but enjoying property against the respondents rights, hence the suit is also
barred by limitation. The lower court would have considered that as per Ex.B13
settlement deed executed by Vedhaiah Mudaliar is legally valid. At the time of executing
the settlement deed itself Vedhaiah Mudaliar had the absolute ownership of the suit
property by way of adverse possession and the lower trial court has failed to consider the
same. The suit property belonged to the father of the appellant and hence he executed the
settlement deed of Ex.B13, which is a proper deed. The same should have been decided,
based on that and hence the Llower Trial Court should allow ths appeal and set aside the
order of the decree and the judgment passed by the learned Lower Trial Court .
9. To resolve the issue in the appeal:
The lower trial court has decided that the plaintiff is not entitled to ask for permanent
injuction and hence the suit has been dismissed accordingly is whether correct or not.

10. For the convenience of the case appellant be called as plaintiff and the defendants be
called as respondents.

11. Issue :
First defendant in her written statement has stated that he suit property was purchased by
Veerabadra Mudaliar on 21.10.1933. Veerabadra Mudaliar has executed a registered eill
on 16.04.1950. In the said will he has stated that the “C” Schedule property was allotted
for th
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