THANGARAJAPANDIAN Vs. SREEKRISHNAPERUMAL

JUDGEMENT

(1.) The plaintiff in O.S.No.68/81 on the file of the Additional District Munsif, Nagercoil, is the appellant in the second appeal. He filed the suit for declaration of his possession in respect of A and B Schedule properties and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment.

(2.) The case in the plaint is as follows: In Thamaraikulam Village in Old S.No.1106 an extent of 1 acre 49 cents belonged to the plaintiff's father and his brothers. There was a partition in 1112 M.E. among the brothers. The extent of 1 acre 49 cents was divided into five plots. One cent was set apart for water spring and for public use. The plaintiff's father got plots, viz. 2 and 3. The allotment is set out in the plaint plan. He got 26.250 cents being plot No.3 and 23.093 cents being plot No.2 and after effecting mutation in the records, he was in enjoyment of the same and after him, the plaintiff is in enjoyment, plot No.3 as S.No.1106/5 and plot No.2 as S.No.1106/4, the corresponding new survey numbers being 474/7 and 473/2 respectively. Some mistake was committed at the time of resurvey. The Resurvey Authorities without looking into the revenue records, the plaintiff's documents and kist receipts and his enjoyment and without notice to him, conducted resurvey. The resurvey was against law and is therefore not valid and it will not bind the plaintiff. In the resurvey, in plot No.3 S.No.474/7 9.5 are, is shown. This should be 23.465 cents. On actual land the plaintiff is in enjoyment of 26.250 cents. The property belonging to defendants 1 to 3 is plot No.1, which is to the east of the plaintiff's plot No.3. The resurvey number is 473/3. As per the partition deed, defendants 1 to 5 are entitled to 21.5 cents. But, as per resurvey they had been given 22.230 cents. Plot No.4 is on the eastern side of plot No.3 and that belongs to defendants 1 to 5, in that the extent is shown as 27.843 cents. Plots 4 and 5 have been included in new survey Nos.474/5 and 474/6. By mistake 2.785 cents have been shown in S.Nos.473/3, 474/5 and 474/6. Out of this 2.785 cents, 750 sq.links are shown as A Schedule property. 2.035 cents are shown as B Schedule. Defendants 1 to 5 have no right in 2.785 cents. They are trying to take advantage of the mistake committed in the resurvey and attempting to forcibly enter and occupy the suit property. In these circumstances, the suit came to be filed. In view of the urgency, no notice under Section 80 was given to the sixth defendant. The plaintiff has obtained permission under Section 80(2) of the Code of Civil Procedure from the Court for dispensing with the notice.

(3.) The defence set up was as follows: The plaintiff has not impleaded the proper and necessary parties. The suit is also barred by limitation. It is true that a partition took place in 1112 M.E. The suit plan is not correct. As per the partition deed for plot No.3 21-1/4 cents have been given. For plot No.2 23.093 cents have been given. It is not correct to say that the plaintiff is entitled to 26.250 cents in plot No.3. As per the partition deed, a common pathway should have been formed. It is situate between the houses of the plaintiff and the defendants. It has not been shown in the plaint plan. After deducting the extent set apart for the pathway, plots 2 and 3 belonging to the plaintiff contained correct extents. The plaintiff is attempting to occupy the pathway. If the pathway is removed, it will not be possible for these defendants to get out of their house. There is no alternative pathway. After the partition each of the parties had been in enjoyment of the portions allotted to them by fencing the same. These defendants do not know anything about the survey. Plot No.1 belonged to the first defendant and his brother Palavesamuthu Nadar. There was a division on 26-12-1949 and in terms of that division, Perumal Nadar got 51/16 cents and Palavesamuthu Nadar got 16-1/4 cents. After Palavesamuthu Nadar's death, his son Selvaraj sold an extent of 8 cents to one Chinnathangam Nadar. The rest is in possession of the second defendant. Plot No.4 belongs to the first defendant, his brother Palavesamuthu Nadar and Ramalingam Nadar. The extent is 27-3/4 cents. In the partition dated 26-12-1949, 11-3/4 cents were given to the first defendant, 16-1/4 cents to Ramalingam Nadar. Defendants 4 and 5 are the sons of Ramalingam Nadar. Defendants 4 and 5 had colluded with the plaintiff and filed the suit. The first defendant had purchased 25-1/2 cents and 1/16 cent from Isakkiadimai Nadar in 1102 M.E. The water spring is in that property. Plot No.4 purchased from Isakkiadimai Nadar is a single block. The plaintiff had never been in possession of A and B Schedule properties. Patta stands in the name of the first defendant. It is not correct to say that the defendants are occupying A and B Schedule properties. The plaintiff attempted to occupy the pathway and with that object, he destroyed the eastern fence. The plaintiff had already filed O.S.No.872/80 in respect of the pathway to the water spring.