NARAYANASWAMI NAIDU Vs. GOVINDARAJU NAIDU

JUDGEMENT

(1.) This second appeal has arisen from the judgment of the learned III Additional Subordinate Judge, Coimbatore, made in A.S.No.98/91 wherein the judgment of the trial Court in a suit for permanent injunction granting the relief in favour of the plaintiffs, was reversed.

(2.) The plaintiffs sought for the relief of permanent injunction that their peaceful possession and enjoyment of the plaint Schedule mentioned property, a cattle shed, should not be disturbed or interfered with either by trespass or by otherwise by the defendants with the following pleadings: The first plaintiff and the first defendant are brothers. The properties were divided between them by way of a partition deed dated 23.6 .1968. The building and the space adjoining the same, situated on the north of Perumal Koil Street, Pappanaickenpalayam were also partitioned. A specific portion measuring 38 +' east west on the north, 40' on the south and 98' north south on the east and 97' on the west consisting of five anganam house with front azaram, a 3 anganam tited shed on the south and a tiled cowshed were allotted to the first defendant, while a specific portion measuring 50 feet east west on the north, 52' on the south, 98 feet north south on the west and 96 +' on the east consisting of 5 anganam house and a 7 anganam tiled house on the south were allotted to the first plaintiff. The first plaintiff's properties are situated on the east of the first defendant's property. The first defendant took possession of his portion, remodelled the same, demolished the cattle-shed and put up residential portions. At that time, he sought for the permission of the first plaintiff to tie his cattle in the first plaintiff's portion. Accordingly the first plaintiff permitted him to have his cattle in his portion and to use his latrine as a matter of leave and licence. The first plaintiff decided to give his portion namely the suit property, to his daughter, the second plaintiff. Hence, the first plaintiff requested the first defendant to make his own arrangements and not to leave his cattle in his portion. The suit property was settled in favour of the second plaintiff. The licence granted to the first defendant has already been revoked and no more in force. The defendants were attempting to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property, which necessitated them to file the suit.

(3.) The suit was resisted by the defendants with the following allegations: Though the first plaintiff was allotted the eastern portion to a particular north south length, the dividing line between the two properties was not straight. The first plaintiff took the eastern property to a certain north south length along with the protruding structure on the west, and the first defendant was allotted western portion along with south eastern area where the cattle shed was situated. The cattle shed was mentioned in the property allotted to the first defendant under the partition. There was only one cattle shed all along. The description of property set out in the plaint does not contain correct particulars. No demolition or reconstruction was made by the first defendant. Only a flush-out latrine was constructed. The allegation that the first defendant was allowed to remain in possession of the cattle shed under leave and licence is false and imaginary. The cattle shed portion along with vacant space and flush out latrine portions were in the possession of the first defendant from the time of partition. The plaintiffs have no right over the same. Mere suit for injunction without seeking declaration of his right and when the first plaintiff is not in possession, is not maintainable. The first defendant has been in possession of the cattle shed and adjacent portion in his own right, and hence, he perfected title to the said portion by adverse possession for over 22 years. The plaintiffs cannot oust him. Hence, the suit was to be dismissed.