PALANIMMAL Vs. PECHIMUTHU

JUDGEMENT

(1.) THE main question of law that is argued by learned counsel for the appellant is that the plaintiffs have to fail as they have not prayed, for declaration of title or recovery of possession as, according to learned counsel for the appellant, it is admitted in the plaint that the defendant had already encroached on the suit property.

(2.) THE prayer in the plaint was for grant of an injunction restraining the defendant from interfering with plaintiffs" possession and for a mandatory injunction for removal of the construction already made by the defendant and marked as A.B. in the plan attached to the plaint. It is contended by learned counsel for the appellant that in paragraph 6 of the plaint, it is admitted that the defendant had already trespassed on the suit property. THE following sentence is relied upon by the learned counsel:

(3.) THE next contention urged by learned counsel for the appellant is that the burden is on the plaintiffs to prove clearly their title and in this case, the plaintiffs have failed to establish their title. THE documents on which reliance is placed by the plaintiffs arc Exs.A1 and A2 of the years 1946 and 1966 respectively. According to learned counsel for the appellant, there is no correlation between the suit property and the property which was the subject matter of Exs.A1 and A2. THEre is no basis for this submission. A Commissioner has inspected the property and submitted a report THE Courts below have considered the report of the Commissioner as well as the evidence on record and found that the plaintiffs have proved their title. THE Courts below have discussed in detail all the evidence on record, documentary as well as oral, and given a finding of fact that the title of the plaintiffs has been established in this case. In fact,the trial court refers to the admission that the first item of the plaint schedule property is the property purchased under Ex.A.1 and the second item of the plaint schedule property is the property purchased under Ex.A.2. That statement found in the judgment of the trial Court has not been challenged either in the lower appellate court or in this Court. Hence it is not open to the appellant to contend that the suit property has not been correlated with the properties, which were subject matter of Exs.A1 and A2.