R VEERASAMY Vs. GOVINDASAMY UDAYAR

JUDGEMENT

(1.) AGGRIEVED against the concurrent judgments of both the courts below in O. S. No. 3003 of 1979 and A. S. No. 35 of 1992, the plaintiff viz. , Veerasamy has filed this second appeal on the grounds that the first appellate court viz. , the Sub Judge should not have dismissed the suit in its entirety inasmuch as title of the plaintiff upon the suit property under Ex. A1 sale deed and that the first appellate court should not have ignored the commissioner's report and plan wherein the encroachment made by the defendants in respect of 7 cents upon the plaintiff's land has been mentioned and thereby the suit should have been decreed in favour of the plaintiff as prayed for.

(2.) THE case of the plaintiff before the Trial Court viz. , the District Munsif, Thiruvannamalai can be narrated in brief as follows. The plaint schedule property viz. , (1) 42 cents in wet Survey No. 42/9d and (2) 7 cents within the said 42 cents under the very same survey number as specifically described therein in the plaint schedule was owned by one Ponnusamy Udayar and then it was purchased by the plaintiff's father viz. , Rama Udayar through a registered sale deed dated 31. 3. 1942. From the date of purchase, the plaintiff's father was in possession and enjoyment of the suit property and thereafter the plaintiff being eldest son in the family, is in possession and enjoyment of the suit property along with his family members. That is why the plaintiff filed the suit in the capacity of Manager of the joint family. The defendants have no manner of right, title or interest upon the suit property. However they forcibly trespassed and took possession of the 7 cents of land in or about October 1978. The plaintiff issued advocate notice on 23. 12. 1978 demanding to deliver the encroached portion of 7 cents. But, the defendants replied with false allegations. Therefore, the plaintiff happened to file the suit for the relief of declaration of title upon the plaint schedule first item of the suit property and for recovery of possession of the plaint schedule second item (encroached 7 cents) as marked in red colour in the plaint plan.

(3.) THE said suit was resisted by the defendants through written statement filed by the first defendant with the following brief allegations. It is true that the plaintiff purchased 42 cents as alleged in para 3 of the plaint from Ponnusamy Udayar. It is also true that the plaintiff took possession of the property purchased under the sale deed. But, it is not correct to state that the defendants trespassed upon the suit property of an extent of 7 cents as described in the plaint second schedule. No doubt, the plaintiff issued advocate notice and it was replied with suitable allegations. The defendants never trespassed upon any portion of the plaintiff's property as falsely alleged in the plaint. In fact, the plaintiff alone is in excessive enjoyment of 17 cents of land upon the suit survey number and when the defendants questioned such excessive enjoyment, the plaintiff has come forward with the suit and therefore, there is no cause of action for the suit and the same is liable to be dismissed.