2023:MHC:3090 IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgment Reserved on : 16.06.2023 Judgment Delivered on : 11.07.2023 CORAM :

THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY A.S.No.507 of 2015 M.Sekaran (Died)

2. S. Geetha

3. S. Sivaranjani

4. S. Mahalakshmi

5. M. S. Karthik ... Appellants [ A2 to A5 are brought on record as LR's of the deceased, viz., M.Sekaran, vide order of Court, dated 17.03.2023 made in C.M.P.Nos.3245, 3246, 3255 & 3256 of 2023]

Versus

1.Palaniammal

2.Poongulali

3.Dr. D. Jansi Rani ... Respondents Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, to set aside the Judgment and Decree dated 20.10.2014 made in O.S.No.80 of 2011, on the file of the II-Additional District Court, Salem District.

For Appellants : Mr. Shivakumaran For Respondents : Mr. T. R. Rajagopalan, Senior Counsel Assisted by Mr. P. Veena Suresh

JUDGMENT

A. The Appeal :

This Appeal Suit is directed against the judgment and decree dated

20.10.2014 in O.S.No. 80 of 2011 on the file of the II- Additional District Judge, Salem, in and by which the suit filed by the plaintiffs to declare the title of the plaintiffs in respect of ‘B’ Scheduled property, for delivery of vacant possession, for a permanent injunction restraining the defendants from in any manner continuing the construction of a building was decreed by the Trial Court. The original defendant has filed this Appeal Suit and since pending the Appeal Suit he had passed away, his legal heirs are brought on record as appellants 2 to 5.

1.1 Hereinafter in this judgment, the parties would be referred to as per their array in the original suit.

B. The Case of the Plaintiffs:

2. The case of the plaintiffs is that they are the owners of the suit Schedule ‘A’ property, they having purchased the same from one R.V.Krishna Prakash, for himself and as a power of attorney, agent for the other co-owners of the property, namely, S.Nirmala Rani, S. Sasikala Rani, and Obu Kanchana Rani, by a registered sale deed dated 10.12.1995. ‘B’ schedule property, which is a part of the ‘A’ schedule property ad-measuring about 1200 sq.ft, is suddenly trespassed, and unlawfully occupied by the defendant and he started putting up a pucca construction. Therefore, a legal notice was issued on 25.01.2011 to quit and deliver for which there was no positive response, however, the defendant is persisting and is attempting to continue his construction, hence the suit was filed.

C. The Case of the Defendants :

3.The suit was resisted by the defendants by filing a written statement. The defendant admits the title of the plaintiffs predecessors in title, namely, Nagappa Chettiar and his wife, Palaniammal and Manonmani. The said Nagappa Chettiar and others have permitted and allotted 1200 square feet to the defendants’ father, Marimuthu to construct a tiled shed, water tank and to run this avocation, namely, a chicken center in the name and style “Karuppusamy Kozhi Kadai”. Thereafter, in the year

1973 the defendant's father also started selling firewood by starting a firewood depot on the said land. Later on, the defendant also joined his father in the business. In the year 2002, they constructed a ferro concrete house and none objected when the construction was made and the defendants, along with their family members, are living in the property and running the said Karuppusamy Kozhi Kadai and firewood depot till date. They are not aware about the title deeds of the plaintiffs. The plaintiffs have not categorically stated as to when the defendants trespassed into the property.

3.1 The defendant is in permissive position and occupation of the property. After constructing a pucca permanent structure, they cannot be asked to vacate the property as per law. On receipt of the legal notice, the defendants personally approached the plaintiffs and appraised them of the above facts and the plaintiff sought some more time to look into the matter. Therefore, the defendant did not issue a reply notice. The plaintiffs have fil