JUDGMENT

Challenge in this second appeal is to the Judgment and Decree dated

08.08.2000 passed in A.S.No.33 of 2000 on the file of the Principal District Judge, Nagapattinam, reversing the Judgment and Decree dated 13.07.1999 passed in O.S.No.32 of 1996 on the file of the Principal Subordinate Judge, Nagapattinam.

2.For the sake of convenience, the parties are referred to as per the trial Court. The defendants are the appellants herein.

3. The suit has been filed for declaration and injunction. (i) to declare the title of the schedule of properties in the name of Late N.Jayarajan @ Shanmugam belonging to his estate and now vested on the plaintiffs.(ii) pass a decree by way of consequential injunction restraining the 2nd defendant, their agents, servants or assigns from interfering in anyway or in any manner with the peaceful enjoyment and possession of the plaintiffs or otherwise disturbing their enjoyment or right to possession or do any acts affecting or otherwise tampering with plaintiffs' title in any manner whatever.

4.The case of the plaintiffs, in brief, is as follows:-

(a) One Jeyarajan @ Shanmugam (deceased), who is the husband of the

1st plaintiff and father of the plaintiffs 2 to 6, acquired properties in and around his house. He becomes affluent in course of time out to his Ceylon contacts and by his other activities. He began acquiring properties for his own benefit and with his funds, the properties mentioned in the schedule were so acquired title vested on him. Since most of them surrounded his residence, one after the other, he acquired the schedule mentioned properties and was in exclusive possession and he had paid kist ever since the date of their purchases, enjoyed as the owner.

(b) The first defendant-Muniyan was the employee under the deceased Shanmugam for long years from his childhood. He served faithfully and was Jayarajan’s close confident employee. 1st defendant is an illiterate person and he showed loyalty to his master Shanmugam. On account of the same, the deceased Shanmugam constructed a house opposite to his residence, where the st

1 defendant was made to stay. Jayarajan @ Shanmugam purchased those properties and registered the sale deeds in the name of the 1st defendant, nominally but for his own benefit with his own funds and the properties were exclusively belonging to him. All the funds were paid by Shanmugam to his vendors. The title was vested on Jayarajan @ Shanmugam and remained in physical enjoyment making improvements, digging wells, planting trees and in exclusive possession till his death an d thereafter with the plaintiffs who are his legal heirs.

(c) It is stated that since Jayarajan @ Shanmugam brought those properties out of funds from his trade of Ceylon merchandise, he anticipated trouble and retained the title with him. The original sale deeds were with him and are filed herewith. Kist also paid by him and that is also filed by the plaintiffs. In 1992, for the sake of appearance, patta had been changed in the name of the 1st defendant. The plaintiffs state that the 1st defendant was not even aware of the identity and location of the properties.

(d) In the properties, for better enjoyment, several types of trees were planted, four wells were dug up for irrigation.

(e) The plaintiffs case is that Jayarajan @ Shanmugam died under mysterious circumstances while in police custody on 20.07.1991 at Vedaraniam. After his death, the plaintiffs have succeed to his estate and incidentally to the suit properties as well. The plaintiffs remain in absolute possession and enjoyment. The first defendant voluntarily and willingly executed a Muchalika on 14.10.1991 admitting the title of his employer and his non possession. So the title holder of the suit mentioned properties were only st Jayarajan @ Shanmugam and 1 defendant had no claim whatsoever on all aspects.

st (f) It is also the case of the plaintiffs that the 1 defendant committed theft in the first week of December 95 in the house of plaintiffs.