JUDGMENT

The instant second appeal has been filed by the plaintiffs. The respondents herein are the defendants before the Trial Court.

2.For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.

3.The brief facts, which give rise to the filing of this second appeal, are as follows:

(i) The suit properties are the ancestral joint family properties of one

Mr.Vellaiya Pandithar, who wa s the maternal grand father of plaintiffs 2 to 7, and his two sons namely one Mr.Raghavan Pandithar and one Mr.Subban Pandithar. Here, Mr.Raghavan Pandithar's wife predeceased him, and later, the said Mr.Raghavan Pandithar also died issueless. Therefore, his half share of the properties also devolved upon the said Mr.Subban Pandithar, who was the father of the plaintiffs, and after his demise, the plaintiffs became the absolute owners of the suit properties and they have been in possession and enjoyment of the same.

(ii) During September 1996, the first defendant began to lay a false claim over the suit properties alleging that his father one Mr.Lathif khan purchased the suit properties in the year 1962 from the said Mr.Subban Pandithar. According to this plaintiff, the sale deed dated 10.04.1962 was a forged and fabricated one through which, the D1 could not have any title over the suit properties. The first defendant filed an application before the 3rd defendant to transfer the patta relating to the suit properties from the names of the plaintiffs to his name. However, the 3rd defendant transferred the patta jointly in the names of plaintiffs 1 to 4 and defendants 1 & 2, without making any enquiry. Therefore, the plaintiffs came forward with the suit for mandatory injunction directing the defendants 3 and 4 to remove the names of the defendants 1 and 2 from the patta relating to the suit properties.

4.The said suit was resisted by the first defendant by contending that the suit properties originally belonged to the joint family of the said Mr.Vellaiya Pandithar and his two sons namely the said Mr.Raghavan

Pandithar and the said Mr.Subban Pandithar. After the death of the said Mr.Vellaiya Pandithar, his sons were jointly enjoying the suit properties. Whileso, after the demise of the said Mr.Raghavan Pandithar, who died issueless, as his wife predeceased him, the properties of the said Mr.Raghavan Pandithar exclusively devolved upon the said Mr.Subban Pandithar. The plaintiffs have never been in possession and enjoyment of the suit properties. By virtue of the sale deed dated 10.04.1962 executed by the said Mr.Subban Pandithar, the father of the D1 had been enjoying the suit properties. He orally leased out the suit properties to his vendor, Mr.Subban Pandithar on condition that he should pay the kist and deliver the rent to him. Taking advantage of the absence of the defendants, the plaintiffs made entries by influencing the officials under the UDR scheme. If really the plaintiffs got title over the suit properties, they should have sought for a relief of declaration and that they could not seek mere a mandatory injunction, without seeking the relief of declaration.

Evidence & documents and Findings of the Court below:-

5. Before the Trial Court, the plaintiffs examined four witnesses as

P.W.1 to P.W.4 and 9 documents were marked as Ex.A1 to Ex.A9. On behalf of the defendants, two witnesses were examined as D.W.1 and D.W.2 and three documents were marked as Ex.B1 to Ex.B3.

6. The Trial Court framed the following issues

1. Whether the sale deed, dated 10.04.1962

executed in favour of the defendant's father is true, valid and binding on the plaintiff?

2. Whether the oral lease between Lathifkhan,

Sahib, Subban is true?

3. Whether the plaintiff' perfected his title by adverse possession?

4. Whether the suit is bad for non-joinder of necessary party?

5. Whether the plaintiff' is entitled to the suit claim?

6. To what other relief?

7. After framing the above issues, the Trial Court ultimately decreed the suit