JUDGMENT :

(Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 30.06.2008 made in A.S.No.292 of 2007, on the file of the learned Additional District Judge (FTC-V), Chennai, reversing the judgment and decree dated 31.07.2006 made in O.S.No.1472 of 1998 on the file of the learned XIII Assistant Judge, City Civil Court, Chennai.)

1. The Second Appeal is focused as against the judgment and decree dated 30.06.2008 made in A.S.No.292 of 2007, on the file of the learned Additional District Judge (FTC-V), Chennai, reversing the judgment and decree dated 31.07.2006 made in O.S.No.1472 of 1998 on the file of the learned XIII Assistant Judge, City Civil Court, Chennai. The suit is for recovery of possession.

2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

3. The laconic averments made in the plaint, are as follows:

(i) The plaintiff is the absolute owner of an undivided 1/3rd share of the land situated in the sanctioned plan of West Madras Neighbourhood Scheme bearing Plot No.3736, Door No.Q19, 17th Street, Anna Nagar, Madras –600 040. The plaintiff has acquired the same through the sale deed dated 28.03.1990 executed by C.S. Saravanavelu, who is the husband of the 1st defendant and the father of the plaintiff. The terms of the said sale deed permitted the plaintiff to construct a first floor over the roof of the existing ground floor of the building constructed on the land. The plaintiff being the employee of the Indian Bank availed a housing loan and had put up the first floor over the roof of the ground floor of the said building. The undivided 1/3rd share in land, together with the first floor constructed by the plaintiff are morefully described.

(ii) The plaintiff had let out the first floor to one Murali Kothari, and in turn he is occupying the said floor as a tenant under the plaintiff and was paying the monthly rent to the plaintiff. The said tenant vacated the premises in March 1995 and thereafter, the premises was kept under lock and key by the plaintiff. The 1st defendant, was occupying the first floor, in a high handed manner. The plaintiff hence requested the 1st defendant to hand over the possession of the scheduled property peacefully.

(iii) Whilst so, the plaintiff states that the 1st defendant had leased out the scheduled property in and around July 1995 to the 2nd defendant on a monthly rent of Rs.3,500/-. The 2nd defendant has been paying the said rent to the 1st defendant. Inspite of repeated demands made by the plaintiff, the defendants refused to deliver the vacant possession of the suit property. Hence, a legal notice dated 25.03.1996 was issued to both defendants. The defendant sent a reply on 15.05.1996. The plaintiff sent a suitable rejoinder dated 17.07.1996. Thereafter, there has been no response from the defendants. Hence, the suit.

4. The averments found in the written statement filed by the 1st defendant, are as follows:

(i) The plaintiff is not the absolute owner to the undivided 1/3rd share as alleged. It is false to say that the plaintiff have acquired the same through a sale deed dated 28.03.1990 executed by C.S. Saravanavelu, husband of the 1st defendant and father of the plaintiff. The terms of the sale deed did not permit the plaintiff to construct the first floor over the roof of the existing ground floor. The father of the plaintiff intended to construct additional two floors over the ground floor roofing and give one floor to each of the 3 daughters.

(ii) In the sale deed referred by the plaintiff, it was stated that the premises at present consists of the ground floor, first floor and second floor, to deal with them as separate entries, which clearly clinches the issue that the plaintiff is not the absolute owner of the 1/3rd share of the land. She never constructed the first floor out of her own funds and she was not given possession in pursuanc