VIJAYALAKSHMI Vs. RAJA

JUDGEMENT

(1.) The Appellant/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 28.01.1999 in A.S.No.141 of 1998 passed by the Learned Additional Subordinate Judge, Nagapattinam.

(2.) The First Appellate Court while passing the Judgment in A.S.No.141 of 1998 on 28.01.1999 has inter alia observed that '...the Defendant/Respondent is not now in joint possession of the suit properties. However, after he acquires right upon the said properties as stated supra, the presumption is that he is also a co-owner. But, the contention on behalf of the Appellant is that the Respondent/Defendant being an alienee from Seeniammal, another Co-owner is not entitled to joint possession with the Appellant upon the said properties and that the Appellant is entitled to seek injunction against him. But, it is not a case between a Coparcenar and a stranger alienee from coparcenar. Therefore, the said contention on behalf of the Appellant is not accepted. Therefore, it is held that the Plaintiff/Appellant is not entitled to injunction as against the Respondent/Defendant with regard to Door No.2/39 and the property in Survey No.67/6. Also, the trial Court has further observed that the Defendant/Respondent derived right upon the Survey No.67/10. Therefore, with regard to the said property, the Appellant/Plaintiff is not entitled to seek injunction against the Respondent. Therefore, the Judgment and Decree of the trial Court with regard to the suit house, the property in Survey No.67/6 and the property in S.No.67/10 cannot be said as incorrect and accordingly held for point No.1 that the portion of the Judgment and Decree of the trial Court dismissing the Plaintiff/Appellant's claim with regard to the suit house in Door No.2/39, the property in S.No.67/6 and the property in S.No.67/10 is correct' and resultantly, confirmed the portion of the Judgment and Decree of the trial Court dismissing the Plaintiff/Appellant's claim in regard to the same and consequently, allowed the Appeal in part without costs.

(3.) Before the trial Court in the main suit, two issues have been framed for trial. On behalf of the Appellant/Plaintiff, Witnesses P.Ws.1 and 2 have been examined and Exs.A1 to A40 have been marked. On the side of the Respondent/Defendant, Witnesses D.Ws.1 to 3 have been examined and Exs.B1 to B9 have been marked.