IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.10.2009

CORAM

THE HON'BLE MR.JUSTICE M.JEYAPAUL

S.A.No.1452 of 1995

Pandurangan ... Appellant/Plaintiff

vs.

1.Shanmugam

2.Ammachi Ammal ... Respondents/Defendants

Appeal filed under Section 100 C.P.C. against the judgment and

the decree dt.25.1.94 in A.S.16/92 on the file of the Subordinate

Court, Villupuram, reversing the judgment and the decree dt.28.11.91

in O.S.No.302/89 before the Additional District Munsif's Court,

Villupuram.

For appellant : M/s.Juliana Pinto

For respondents : No Appearance for R1, R2.

JUDGMENT

The plaintiff is the appellant herein. The suit was filed by

the plaintiff seeking for a declaration of possessory title of the

plaintiff and also for permanent injunction restraining the

defendants 1 and 2 from interfering with the peaceful possession and

enjoyment of the plaintiff.

2.The trial court accepted the case of the plaintiff and decreed

the suit as prayed for. The First Appellate court reversed the

finding of the trial court. As against which the plaintiff has

preferred the present Second Appeal.

3.The respondents/defendants originally engaged a counsel. The

counsel reported no instruction on 10.03.2008 itself. Thereafter

there was no representation for the respondents/defendants inspite of

the fact that their names were printed in the cause list. The

submission made by the learned counsel appearing for the

plaintiff/appellant was heard.

https://hcservices.ecourts.gov.in/hcservices/

4. The plaintiff has contended in the plaint that the suit

property bearing door no.94V, Murugan temple street, E.Mandagapattu

village, Villupuram taluk is a lake poromboke. It was in the

possession and enjoyment of Messrs. Kaliamoorthy and Krishnamoorthy.

They having put up a superstructure were in possession and enjoyment

of the same. There was an oral partition in their family and the

property was equally divided between them. The said Kaliamoorthy

sold away his half share in the suit house and the vacant site for a

consideration of Rs.5,000/- on 20.03.1986 and his brother

Krishnamoorthy sold his half share in the suit house and the vacant

site for a consideration of Rs.5,300/- on 27.02.1989 to the

plaintiff. It is contended that the plaintiff has been in possession

and enjoyment of the said property after both of them vacated the

premises. With the above pleadings the plaintiff has sought for

declaration of possessory title and for permanent injunction.

5. The defendants resisted the claim of the plaintiff on the

ground that Kaliamoorthy who put up a superstructure in the suit

property sold the same to the second defendant on 13.02.1988. There

after the first and second defendants have been in possession and

enjoyment of the suit property. Setting up a rival possessory title

to the suit property, the defendants sought for dismissal of the suit.

6. The trial court completely disbelieved the documents produced

on the side of the respondents/defendants. Having relied upon the

evidence of P.W.2 and P.W.3 who were allegedly in possession of the

suit property prior to the transfer of possession and also the other

documents produced on the side of the plaintiff chose to decree the

suit as prayed for.

7. The First Appellate court upset the finding of the trial

court relying upon the documentary evidence produced by the

respondents/defendants. But the First Appellate Court had not

entered into any discussion with respect to the evidence of P.W.2 and

P.W.3 who were originally in possession of the suit property.

8. The following questions of law have been framed at the time

of admission of the Second Appeal.

"1) Whether in law the lower appellate Court was

right in overlooking the unimpeachable evidence

of the plaintiff's vendors wh