PALANISAMY Vs. APPARSAMY

JUDGEMENT

(1.) This Civil miscellaneous appeal is preferred against the order under Rule 23 of Order XLI, CPC remanding the case in A. S. No. 161 of 1999 by the II- Additional District Judge, Pondicherry. The respondent before the lower appellate Court, who is the defendant in the suit, has preferred this appeal.

(2.) The respondent in the present appeal, who is the plaintiff, filed a suit in O.S. No. 1789 of 1996 on the file of III Additional District Munsif, Pondicherry, for permanent injunction restraining the appellant herein, who is the defendant in the suit, from interfering in his possession in the plaint schedule property. It is the case of the plaintiff that he and his parents are in occupation and enjoyment of the suit property from 1-6-1960 onwards and they have right of adverse possession over the property and the defendant is trying to interfere with their possession. Denying the plaintiff s case, the defendant contended that the plaintiff, who was a tenant in the suit property, was directed by the police officer to handover the possession of the suit property to the defendant and accordingly, the plaintiff vacated the suit property and the defendant is in possession of the suit property as on date and since the plaintiff did not seek for relief of declaration of his title to the suit property, the suit is liable to be dismissed. The trial Court held that the suit for permanent injunction without seeking the relief of declaration of title is not maintainable and the plaintiff is not in possession of the suit property on the day of filing of the suit and dismissed the suit. The plaintiff preferred an appeal in A.S. No. 161 of 1999 to the District Court, Pondichery and the II-Additional District Judge, who disposed of the appeal by passing an order under Rule 23 of Order XLI, CPC,remanded the case to the trial Court. Aggrieved by the same, the present appeal is filed.

(3.) Heard the learned counsel for the appellant and the respondent.