Provisions of section 41 cannot be invoked.

1. The defendants are the appellants.

2. The suit O.S. No.56 of 1980 was filed by the respondent herein against the appellants before the District Munsif, Tirunelveli, for declaration of title and for permanent injunction against them restraining them, their men, etc., from interfering with his enjoyment of the property on the following averments:

The suit vacant site and the house that stood thereon belonged to his grandfather, who sold it to one Manakkan several years back. Manakkan was in possession and enjoyment of the same for many years and on his death, his son, one Lakshmanan was in possession and enjoyment. He left the village for good and settled in a neighbouring village, called Savalakkarankulam. The house fell down in course of time about 12 years prior to the suit and since then, the respondent was in enjoyment of the vacant site. He had also planted one Vadamadakki and also raised Karuvai trees in the site. On 5.2.1979, he got the sale deed under Ex-A.1 from the said Lakshmanan and had thus perfected title to the schedule site and the trees standing thereon. He was the owner in possession. With a view to put up a house in the site, he was arranging to cut the trees in the last week of December, 1979. This was obstructed by the appellants. One of the appellants wanted to take sale of the site and the respondent had got the sale and having failed in the attempt, the appellants wanted to prevent the respondent from enjoying the property. There was no response to the notice issued by the respondent under Ex.B-1 on 19.12.1979. The suit was therefore necessitated.

3. The appellants resisted the suit contending inter alia as follows:-

The averments in the plaint were not true. Lakshmanan was the aunt's son of the first appellant. Out of love and affection, Manakkan and Vellayan, the first and third appellant herein, permitted him to put up a construction in the suit property and resided there. However, the said Lakshmanan was not to claim any right in the property and should quit and deliver vacant possession to the appellants whenever they wanted the property. Only on the basis of this permission, the said Lakshmanan was in possession and he had no right, title or interest in the property. he was only in permissive occupation. Such permission was given about 10 years prior to the suit. The superstructure was agreed to be given to the appellants by Lakshmanan on payment of Rs.200 and even without receiving any payment, the superstructure was given to the appellants. In the meantime, the respondent had taken a sale deed from Lakshmanan. Neither Lakshmanan nor his father had any right in the suit property. The trees in the suit property had grown spontaneously. Since Lakshmanan had no right, title or interest in the suit property, the alleged sale deed by him in favour of the respondent, was not true or valid. Lakshmanan, realising his mistake, later on cancelled the sale deed. The suit property belonged jointly to the first and the third appellants absolutely. They had collected stones for putting up construction. The respondent was attempting to remove the stones kept in the property by the first and the third appellant for putting up a house. The respondent had no right in the property. The suit was liable to be dismissed.

4. The trial Court framed the necessary issues and found that the suit property did not belong to the respondent, that Lakshmanan was only in permissive possession of the suit property, that Lakshmanan had no title to the suit property and the property belonged only to appellants 1 and 3 since the documents Ex.A-1 had been purchased from Lakshmanan by fraudulent means, the same was subsequently cancelled by Lakshmanan and that the respondent had not prescribed for title by adverse possession. So holding, by his judgment and decree dated 31.3.1983, the learned District Munsif dismissed the suit.

5. However, on appeal by the respondent in A.S. No.78 of 1983 before the I Additional District