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CASE NO.:

Appeal (civil) 4535-4536 of 2001

PETITIONER:

Dharmarajan & Others

RESPONDENT:

Valliammal & Others

DATE OF JUDGMENT: 11/12/2007

BENCH:

H.K. Sema & V.S. Sirpurkar

JUDGMENT:

J U D G M E N T

V.S. SIRPURKAR, J.

1. A common judgment passed by Madras High Court allowing two

Second Appeals is in challenge before us. The Single Judge of the

Madras High Court set aside the appellate judgment, again a common one

allowing appeals against the common judgment passed by District Munsiff,

Bhawani whereby the District Munsiff had decreed the suit filed by one

Muthuswami Gounder and dismissed the other suit filed by Dharmarajan,

the appellant herein. A short history of the case would be essential.

2. K. Muthuswami Gounder filed a suit registered as O.S. No.555 of

1991 for declaration and injunction alleging that he had purchased suit

property Survey No.324/D1 under a Sale Deed dated 10.10.1980 from one

Doraiswamy who was in possession and enjoyment of the property. The

said Doraswamy was claimed to be a foster son of one Karupayee who

had expired in the year 1961 and who was claimed to be in possession

and enjoyment of the suit property wherein she had put up a thatched shed

and was residing for more than 30 years. It is claimed that after

Karuapyee her foster son who was none else but his sister’s son obtained

the possession and enjoyed the said suit property. Before this sale deed

dated 10.10.1980, he had executed a Mortgage Deed in respect of the suit

property in favour of the plaintiff Muthuswami Gounder dated 15.6.1980. It

was further claimed that Doraiswamy was permitted to occupy the suit

property as tenant on monthly rent of Rs.50/-. It was further asserted that

defendants 1 to 7, i.e., the present appellants had also wanted to purchase

the property from Doraiswamy but having failed, they were falsely claiming

certain rights in the suit property by creating some false documents and

that they had no right, title or possession. It was claimed that the plaintiff

and his predecessor, namely, Doraiswamy had acquired the title by

adverse possession for more than 60 years. It is on this basis that

Muthuswamy Gounder claimed a decree for declaration of his ownership

as also for the injunction against the present appellants.

3. As against this, the present appellants claimed that this property in

fact belonged to first defendant therein, (the appellant no.1 herein) in so far

as the Eastern half of the property was concerned since it was purchased

by the first defendant from one Venkataramana Iyer. It was claimed that

the suit property originally belonged to one K.V. Krishnasamy and others

and they were throughout in possession and enjoyment of the suit property

and were paying house tax also. The other appellants claimed the other

half of the property on the plea that they had purchased the same from the

other co-sharer Venugopal Iyer who had inherited the property from K.V.

Krishnasamy and others. It was claimed that Karuppayee was working as

a maid servant under one Venugopala Iyer and it was he who had

permitted her to put up the thatched shed in the suit property and after the

death of Karuppayee, Doraiswamy started working as a servant of

Venugopala Iyer and as such he was in occupation of the thatched salai

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(house) with the permission of Venugopala Iyer. It was claimed that the

property stood in the name of Venugopala Iyer in Kavundapady

Panchayat. In short it was contended that the present appellants were

owners of the property which they had purchased on 15.7.1980 and

27.8.1980 vide different sale deeds. It was further claimed that after the

purchase of the suit property, the present appellants who were the

defendants in Suit No.555 of 1981 were paying the taxes and Doraiswamy

was staying in the property with their permission. The