MASILAMANI Vs. MOORTHY

JUDGEMENT

(1.) The present Second Appeal was brought by the plaintiff against whom the learned first appellate Court dismissed the suit by reversing the judgment and decree for permanent injunction granted by the trial court.

(2.) The plaintiff/appellant-Masilamani filed a suit for bare injunction restraining the defendant, his men, agents and representatives from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property with another prayer for payment of costs of the suit from the defendant on the ground that the plaintiff was in continuous possession and enjoyment of the suit property for several decades by putting up a thatched hut in a portion of the suit property. It was the plaintiff's further case that the Government has also recognised his possession and enjoyment of the suit property by granting patta in his name in Natham Survey Scheme. On that basis, the plaintiff has also put up a cattle shed in a portion of the suit property and house tax was also assessed in the name of the plaintiff and to prove his possession the plaintiff also filed house tax receipts. It was his further case that the possession and enjoyment of the suit property by him has been in open and to the knowledge of the entire villagers including the defendant and thus, he has acquired the prescriptive title to the suit property by his long, continuous and uninterrupted possession for more than the statutory period. Whileso, when the defendant along with his henchmen made an attempt to trespass into the suit property on 27.4.1997, the same was averted by the plaintiff with great difficulty. Under these circumstances, apprehending trespass, the plaintiff was compelled to file a suit for permanent injunction restraining the defendant, his men, agents and representatives from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for payment of cost of the suit.

(3.) The said prayer was opposed by the defendant by filing a written statement wherein the defendant/respondent herein has specifically taken a ground that the plaintiff/appellant has suppressed the real facts and filed a vague suit since the suit property is the absolute and exclusive property of Mr.Gopal, father of the defendant. It was further averred in the written statement that when the defendant's father Gopal had already filed a suit for declaration and recovery of possession in O.S.No.391/1992 before this court against the plaintiff's father the said suit was decreed. Subsequently, in pursuance of the said decree for declaration and possession the defendant's father also took possession of the suit property on 4.8.1994 through court. Thereafter, the defendant's father-Gopal died leaving the defendant and Selvaraj as legal heirs. Suppressing all these facts, the plaintiff should not have filed a suit for mere injunction. It was further pleaded that the plaintiff was working as a Village Paniyal and by using his influence he somehow managed to get patta from Natham Tahsildar in spite of defendant's objection. Only armed with patta the plaintiff again trespassed into the suit property in January 1998. Therefore, the plaintiff who is working as Village Paniyal has proved himself that he is not a law abiding citizen as he has disobeyed the earlier decree passed in O.S.No.391/1992 granting declaration against him and the same became final. On that basis, it was further contended by the defendant before the trial Court in the written statement that the suit was hit by principle of res-judicata.