Determination of suit property as Benami property.

In a suit for declaration and possession, in respect of the suit property, though the plaintiff succeeded before the trial Court with the support of the 7th defendant, failed in his attempt before the first appellate Court, when the same was questioned by the contesting defendants and the result is, this second appeal by the plaintiff.

2. The first appellant/plaintiff claiming title to the suit property viz., a house bearing Door No.174/W6 Natham Survey No.77/B/15A, alleging that this property originally belonged to one Ganapathy Ammal, which was succeeded by her only daughter as per law then prevailed, that on her death the property devolved upon her sons and daughters, that he obtained a release deed from other heirs of Pillaiyar Ammal, daughter of Ganapathy Ammal and therefore, he is entitled to the suit property as an absolute owner. Thus, tracing title, not only under a release deed dated 5.9.84, as well as tracing the previous title through his grand mother, the first appellant filed the suit for declaration against defendants 4, 6, 9 and 10 as well as for mesne profits, past and future.

3. The contesting defendants/respondents have filed a detailed written statement, not only denying the allegations in the plaint, but also claiming title in themselves, labeling the suit property as ancestral property in which the plaintiff or the other family descendants have no semblance of title, that from the year 1918 onwards, the defendants' predecessors in title and interest were in possession and enjoyment of the suit property, continuously, openly and to the knowledge of others and after their demise respectively, they continued to be in possession of the same as rightful owners, even to the knowledge of alleged owner viz., the plaintiff and others for the past more than 45 years, which conferred upon them title over the suit property, by adverse possession, which should necessarily follow that the claim of the plaintiff, if any, might have been extinguished by efflux of time, which should follow further that the plaintiff is neither entitled to declaration nor possession nor profits.

4. The learned District Munsif, Srivilliputhur, considering the pleadings of the parties, has framed as many as 10 issues. The parties in order to buttress their respective claims, produced 39 documents, exhibited as A1 to A39; and 20 documents exhibited as B1 to B20, in addition to the examination of the plaintiff as P.W.1 as well as the examination of the first defendant as D.W.1.

5. The learned District Munsif, evaluating the above materials, scanning the documentary as well as oral evidence, answered issue Nos.1 to 3 & 5 to 9 in favour of the plaintiff, answered issue No.4 against the contesting defendants, as seen from the conclusion in para-14 of the judgment. The learned trial Judge unable to persuade himself, to accept the case of the contesting defendants, whereas the case of plaintiff inspired him to grant a decree and in view of the matter, the suit was decreed without cost, granting time to hand over possession of the property also.

6. The defendants 1 to 4,6,8 and 10 thought it fit that their case was negatived by the learned District Munsif, without any basis or foundation, that too, against the law, not considering the settled position and therefore, they have approached the Subordinate Judge, Srivilliputhur in A.S.No.80/89, for relief.

7. The learned Subordinate Judge upon appreciating the evidence available on record, unable to take a positive conclusion, as seen from the judgment and as rightly pointed out by the learned counsel for the appellants herein, however, concluding that the plaintiff as well as the defendants have failed to prove their case to his satisfaction, allowed the appeal, and set aside the decree and judgment of the trial Court, presumably on the ground that the plaintiff, who has come to the Court, is not entitled to pick and choose the loopholes available in the defence and on this ground he would not be