Hrishikesh Roy JUDGMENT
A.S. Bopanna, J.
1. The Appellant is before this Court in this appeal, assailing the judgment dated 30.10.2009 passed by the High Court of Madras, Madurai Bench in S.A. No. 1303 of 1994. The Appellant herein is the Plaintiff in the suit while the Respondents are the legal representatives of the deceased first Defendant before the Trial Court. For the sake of convenience and clarity the parties will be referred to in the rank assigned to them before the court of first instance namely, the Court of District Munsif, Palani.
2. The factual matrix in brief is that the Plaintiff filed the suit bearing O.S. No. 769/1987 seeking the relief of perpetual injunction to restrain the Defendants from interfering with the peaceful possession and enjoyment of the plaint Schedule property, as claimed by the Plaintiff. The Defendant No. 2 did not respond to the summons issued in the suit and therefore, was placed ex-parte. The Defendant No. 1 appeared before the trial court and contested the suit. The case of the Plaintiff was that the plaint Schedule property belonged to the Plaintiff who has been enjoying the same for a period of 40 years by paying kist. The property belonging to the Defendant No. 1 is adjacent to the suit property. The same was sold by the Defendant No. 1 to one Parvatham Ammal wife of Ponnusamy in the year 1984. The properties were subdivided after the purchase and were assigned the Survey No. 1073/3V, and 1073/3B. The property bearing Survey No. 1073/13A belonged to Parvatham Ammal. The said Smt. Parvatham Ammal alienated the property to one Subban Asari. Hence, it was contended by the Plaintiff that the Defendant No. 1 has no manner of right over the suit Schedule property. The Plaintiff alleged that the Defendant No. 1 approached the Plaintiff and demanded to sell the property to him but the Plaintiff refused to do so, due to which the Defendants attempted to trespass into the suit property. The Plaintiff having resisted the same claimed that the suit is filed in that view seeking injunction.
3. The Defendant No. 1 in order to resist the suit, filed a detailed written statement disputing the right claimed over the suit Schedule property by the Plaintiff. It was contended that the suit Schedule property neither belonged to the Plaintiff nor was the Plaintiff in possession of the same. On the other hand, it was contended that the Defendant was in possession of the property. It was averred that the suit property and certain other properties originally belonged to Ponnimalai Chetti, the father of Konar Chettiar. He purchased 1/3rd share in Survey No. 1073/3 and 1/5th share in Survey No. 1073/13. Though only the said extent was purchased, the entire extent was in his possession and enjoyment. The said Konar Chettiar handed over the entire extent to Marimuthu Kudumban son of Sivanandi Kudumban who was the grandfather of Defendant No. 1. Subsequently, 0.33 cents of land in Survey No. 1073/3A was acquired for the formation of Kodaikanal road and the remaining extent of land available in the said Survey Number is only 46 cents. Marimuthu Kudumban disposed 0.35 cents of land in Survey No. 1073/13 from out of the extent of 1.76 acre to one Arockiammal i.e., the mother of the Defendant No. 1 under a sale deed dated 10.08.1937 and delivered the possession. The remaining 1.41 acres of land was also enjoyed by Marimuthu Kudumban. Subsequently, he died leaving behind him the mother of Defendant No. 1 namely Arockia........