KANNAMMAL Vs. GANESAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.16 of 1998 dated 11.09.2003 in confirming the judgment and decree passed by the trial court in O.S.No.687 of 1995 dated 29.10.1997 in decreeing the suit in favour of the plaintiff.

(2.) THE appellants were the defendants and the respondents were the plaintiffs before the trial court. For convenience the rank of parties before the trial court are maintained in this judgment also.

(3.) THE case of the defendants as stated in the written statement would run as follows:- The plaintiff's father has purchased only an undivided share. The plaintiff must prove that A, B and C schedule property belongs to his father absolutely. This allegation is denied and the plaintiff is put to strict proof of the same. The family arrangement is false and the plaintiff is put to strict proof of the same. The further allegation in para 3 of the plaint that the plaintiff was in absolute possession and enjoyment of 'A' and 'C' schedule in his own right, title and interest is false. There was no partition as alleged in the plaint. The plaintiff is not the sole owner and so the suit by him alone is not maintainable. His brothers are necessary parties to the suit so the suit is bad for non joinder of necessary parties. The plan filed along with the plaint is incorrect and it lacks material particulars. It cannot be considered at all. The narasam referred to in the plaintiff's house. The plaintiff has put his house in the narasam also thereby preventing the 1st defendant right of narasam and she reserves her right to take separate action for the removal of encroachment over the narasam which is situated on the southern side of his property, the defendant has left a narasam. The narasam is still there. She did not close it. Even today the plaintiff is using the narasam only to reach his house. Hence the allegation that the 1st defendant has put up a Cement platform and obstructed the passage is false. It is also false to state that with the help of the 2nd defendant, the 1st defendant has obstructed the narasam. The plaintiff is put to strict proof of the same. There is a thatched house belonging to the 1st defendant on the south of the plaintiff's A schedule property. So the plaintiff cannot use the defendant's property as passage as it is a separate property. The plaintiff cannot ask for a right of passage in a property altogether overwhich he has got a right is in existence. Hence the allegations are incorrect. The 1st defendant has put up her construction in her place alone. She did not encroach any portion belonging to the plaintiff. The allegation that the 'D' schedule and that it belonged to the plaintiff is false. So the plaintiff is not entitled to the declaration sought for by the plaintiff regarding C and D schedule properties. Since the 'C' schedule narasam is still in existence, the plaintiffs suit has to be dismissed. Since the 'D' schedule does not belong to the plaintiff, the suit has to be dismissed. The 'C' and 'D' schedule properties are not properly valued for the purpose of court fee and jurisdiction and there is no cause of action for this suit. The cause of action pleaded is also false. The plaintiff is not entitled for any injunction. It is malafide action.