KALAVATHY Vs. A. PANDIAN

JUDGEMENT

(1.) THE defendant in the original suit O.S.No. 28/2003 on the file of the Additional District Munsif, Chidambaram, who suffered a decree for recovery of possession of the suit property, which was confirmed by the lower appellate court, namely Subordinate Judge, Chidambaram on 24.03.2007 in A.S.No. 28/2006, has brought -forth this second appeal challenging the decree of the lower appellate court confirming the decree of the trial court.

(2.) THE respondent herein/plaintiff filed the suit O.S.No. 28/2003 on the file of the Additional District Munsif, Chidambaram, initially for the relief of bare injunction. Subsequently alleging dispossession and trespass by the appellant herein/defendant, the plaint was amended and the prayer for recovery of possession was also included. The case of the respondent/plaintiff is that 52 Sq.Mtr. of land comprised in S.No. 326/5 in Keezh -Bhuvanagiri village was a poramboke land belonging to the Government; that the respondent/plaintiff occupied the said property and put up a thatched house for his residence; that the thatched house was assessed to house tax and he was making payment of house tax for the same and that recognising his occupation, patta for the same was issued in favour of the respondent herein/plaintiff under Ex.A1, after re -classifying the land to be a 'Grama Natham'. It is the further case of the respondent/plaintiff that while the respondent/plaintiff was in peaceful possession and enjoyment of the suit property, the appellant herein/defendant (neighbour of the respondent/plaintiff) wanted the respondent herein/plaintiff to sell the property to her and on his refusal, she made an attempt to trespass and interfere with the peaceful possession and enjoyment of the respondent herein/plaintiff in respect of the suit property which drove the respondent/plaintiff to file the suit for permanent injunction; that after the filing of the suit and the pendency of the same were not enough to deter the appellant/defendant from trespassing into the suit property and dispossessing the respondent/plaintiff and that the same necessitated amendment of the plaint seeking recovery of possession in addition to the permanent injunction not to disturb his peaceful possession and enjoyment of the suit property.

(3.) THE learned trial judge, after trial, held that the plaintiff's case of his occupation of the property described in the plaint schedule and the assignment of the same to him by the Government by issuance of patta stood proved and that the defendant's contention that the defendant was in occupation and enjoyment of a portion of the suit property and such portion was not assigned to any one was not substantiated. The learned trial judge also found that the plaintiff was able to prove dispossession after the institution of the suit, by the trespass made by the appellant/defendant. The learned trial judge accepted the case of the respondent herein/plaintiff, decreed the suit and granted a decree for injunction on the premise that the plaintiff was able to prove that he was in possession and enjoyment of the suit property as on the date of the filing of the suit. On appeal, the learned lower appellate judge, concurred with the findings of the trial court. However, since it had been admitted by the plaintiff that he had lost possession during the pendency of the suit, the decree of the trial court was modified by directing the appellant herein/defendant to deliver possession to the respondent herein/plaintiff. As against the said decree of the learned lower appellate judge, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal.