D. PRAKASH RATHINAM Vs. K. RAMALINGAM PILLAI

JUDGEMENT

(1.) Both the second appeals (i.e.) S.A.(MD) No. 744 of 2008 and S.A. No. 70 of 2008 are filed by the appellant as against the common judgment and decree made in A.S. No. 4 of 2005, and A.S. No. 30 of 2005 dated 25.01.2006 on the file of the Second Additional Sub-Court, Kanyakumari at Nagercoil reversing the judgment and decree made in O.S. No. 142 of 2001, dated 15.10.2004 on the file of the I Additional District Munsif's Court, at Nagercoil. Both the Second Appeals are arising out of the same suit O.S. No. 142 of 2001. For the sake of convenience, the defendant in the suit referred as the appellant herein and the plaintiff in the suit referred as the respondent herein.

(2.) The respondent/plaintiff filed a suit in O.S. No. 142 of 2001 seeking the reliefs, namely, directing the appellant/defendant to deliver the vacant portion of the suit property occupied by him, after demolishing the superstructure and for a decree of permanent and prohibitory injunction restraining the appellant and his men not to interfere with the title and possession of the plaintiff over the suit property.

(3.) Briefly, the case of the respondent/plaintiff is that Old S. No. 11920-A of Neendakarai-B Village originally belonged to the respondent's family and it was a coconut grove. In a partition between the respondent's father Late. Kuttralam Pillai and his younger brother Chitrambalam Pillai, the respondent's father was allotted the eastern half share. Later, in the year 1983, the above said half share was further divided into three equal parts and the western-most portion was allotted to the respondent's elder brother namely Sri. Kumaravel Pillai. The middle portion was allotted to the respondent and the eastern portion was allotted to the share of the respondent's younger brother Sri. Balasubramanian Pillai. As per partition, the respondent was in possession and also the respondent effected mutation in revenue records. In the year 1970, the respondent had entered into Government Service. Initially, the respondent's father's younger brother was looking after the property and thereafter, the respondent's uncle Sri Andi Pillai was looking after the property. On 21.08.2000, the respondent has executed a sale deed as regards the southern 18.837 cents, leaving about 9 cents in the north. The above said northern portion is the suit property. In the suit property, there were two tiled roofed houses and both have jointly occupied about 1.5 cents. The appellant was occupying the Western house. Several years ago, the appellant's father Daniel and two others were allowed to occupy small portions in suit survey number under licence and they were looking after the property under permissive possession and protected the coconut grove from theft. After the above said partition, the permissive possession of the property continue and in the above said partition, the portion occupied by the appellant was allotted to the respondent. But it was not altered the character of the possession in the hands of the appellant. The appellant demolished his own small house and he is in the process of constructing a new house. For the above said purpose, the appellant has encroached into the western and southern portion of the suit property. According to the respondent, in the partition deed, the R.S. Number alone wrongly mentioned as R.S. No. 584/2 instead of correct R.S. No. 584/3 and R.S. No. 584/12. But the property allotted to the respondent lies within the boundaries stated in the partition deed and therefore the respondent has got title over the suit property. On 23.01.2001, the respondent came to know that the appellant had constructing a new house and therefore objected for the same. On 25.01.2001, the respondent had personally handed over a letter to the Executive Officer of Panchayat, not to approve any plan and a remainder was also sent on 3.2.2001. The respondent has also given a telegram to the appellant on 8.2.2001 to stop the illegal action. But the appellant acted against the interest of the respondent. Hence the suit.