PERIAMMAL Vs. PALANISAMY GOUNDER

JUDGEMENT

(1.) THIS second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 23.08.2005 passed in A.S.No.9 of 2005 by the Principal Sub Judge, Erode, reversing the judgment and decree of the II Additional District Munsif, Erode in O.S.No.127 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

(2.) A recapitulation and re'sume' of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following reliefs: (i) To restrain the defendant, her men, agents, etc., from in any way and in any manner either trespassing into the suit properties or disturbing the peaceful possession and enjoyment of the suit properties by the plaintiffs by means of permanent injunction; and (ii) for costs.(Extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the first plaintiff-Palanisamy Gounder examined himself as P.W.1 along with P.W.2-Ramasamy and Exs.A1 to A6 were marked. The defendant-Periammal examined herself as D.W.1. (e) Ultimately the trial Court dismissed the suit, as against which appeal was filed. Whereupon, the appellate Court reversed the judgment and decree of the trial Court and decreed the original suit.

(3.) THE learned counsel for the appellant/defendant would put forth and set forth his arguments, the gist and kernel of them would run thus: (a) THE first appellate Court failed to take into account the basic fact that the plaintiffs ought to have established that they were in exclusive possession and enjoyment of the suit property, before they could seek for injunction. (b) THE first appellate Court simply ignored the admission made by P.W.1, the first plaintiff to the effect that only after disposal of the earlier S.A.No.223 of 2002, they ventured to take up the possession of the suit property and that was indicative of the fact that they were not in possession earlier. (c) THEre is nothing to indicate that after the death of Chinnammal, the life estate holder in respect of the half share in the suit property, the ultimate beneficiary/donee, Swaminathan took possession of the suit property. (d) Simply based on the earlier judgment and decree, the appellate Court was not justified in decreeing the original suit, reversing the judgment and decree of the trial Court in dismissing the original suit.