IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 05.07.2024 PRONOUNCED ON : 31 .07.2024 CORAM THE HONOURABLE MR. JUSTICE V. SIVAGNANAM Second Appeal No.1036 of 2011 and M.P. No. 1 of 2011 ---

Packirisamy .. Appellant Versus Saibudheen, rep. By his Power Agent, Asraf Ali, S/o. Abdul Vaheed, Pandaravadi, P.Kothagai, Thittacherry Taluk, Nagapattinam District. .. Respondent Second Appeal filed under Section 100 of CPC against the Judgement and Decree dated 18.11.2009 in A.S. No. 9 of 2008 on the file of the Court of Subordinate Judge at Nagapattinam reversing the judgment and decree dated 28.11.2007 in O.S. No. 340 of 2004 on the file of the Court of District Munsif at Nagapattinam.

For Appellant : Mrs. R.T. Shyamala For Respondent : set-exparte

JUDGMENT

Challenge in this second appeal is made to the Judgement and Decree dated 18.11.2009 passed by the learned Subordinate Judge, Nagapattinam in A.S.No.9 of 2008, reversing the judgment and Decree dated 28.11.2007 passed by the learned District Munsif, Nagapattinam in O.S. No. 340 of 2004 .

2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.

3. The defendant in O.S. No. 340 of 2004 on the file of the District Munsiff Court, Nagapattinam, is the appellant in this Second Appeal.

4. The fact of the case is that the suit property originally belonged to Dhanalakshmi Ammal in view of the purchase made by her on 10.08.1955 from Muthaiya Pathar. On 11.02.1959, Dhanalakshmi Ammal sold the property to Balkis Ammal, who in turn, executed a registered Settlement deed dated 23.03.1980 and settled the suit property to her sister Hameedu Vanjur Ammal. The said Hameed Vanjur Anmal had executed a settlement deed in favour of the plaintiff on 5.7.1987. Since the said Hammedu Vanjur Ammal died, her son Sheik Alaudheen alleging that he succeeded to the estate of his mother and become owner of the suit property executed a settlement deed dated 22.5.1989, infavour of the plaintiff and thereby, the plaintiff had obtained the entire suit property and he is in peaceful enjoyment of the same. The suit property is managed by the plaintiff's Power Agent,namely,Asraf Ali. The patta to the suit property stands in the name of plaintiff's father Sheik Alaudheen. The defendant, who resides on the western side of suit property and who does not have any right and title over the suit property broke open the western wall of the suit property in the last month of March and attempted to trespass into the suit property and thereby, caused damage to the tune of Rs.5000/- to the plaintiff. With regard to the same, the plaintiff has preferred a complaint before Thittacherry Police Station and the police warned the defendant not to cause interference with the suit property. Again, on 30.06.04, the defendant attempted to break the western wall of the suit property and trespass into the suit property and the same was prevented by the plaintiff.

Hence, the suit.

5. The defendant filed written statement and contested the suit stating that the plaintiff only has to prove all the transactions with regard to the suit property from the year 1955 till the plaintiff obtained the suit property, i.e. 1989. The Muthaiya Pathar is the eldest brother of Dhanalakshmi Ammal's husband Rathina Asari, hence, the sale in favour of brother's wife is a nominal one. Therefore Dhanalakshmi Ammal and following her Balkis Amman, Vamkir Ammal, Sheik Almidheen and plaintiff cannot be said to be in enjoyment of the suit property. The house was under the enjoyment and possession of Muthaiya Pathar and after his death, his only son Mani Asari obtained it and after death of Mani Asari, now the suit property is under the enjoyment of this defendant, his brothers and sisters. In the entire house, western half portion was allotted to this defendant's family and eastern half portion was allotted to Rathina Asari under a family arrangement. As per the said arrangement, the western half portion is under the enjoymen