VARADARAJAN PILLAI Vs. THULASIDOSS

JUDGEMENT

(1.) The second appeal arises out of the judgment and decree dated 29.04.2004 made in A.S.No.169 of 2003 on the file of the Principal Subordinate Court, Mayiladuthurai, confirming the judgment and decree dated 15.09.2003 passed in O.S.No.88 of 2001 on the file of the District Munsif Court, Sirkali.

(2.) The averments made in the plaint are as follows:-

(3.) The 1st respondent herein who is the 1st defendant in the suit had filed the written statement wherein it was stated that the plaintiffs have not come to the court with clean hands. The 2nd item of the property viz., property in R.S.No.331/24 is undivided Gram Samuthayam Property. The 1st item is unnecessarily included in the suit so as to create confusion. The defendants make claim only in respect of 2nd item of the property viz., R.S.No.331/24. The father of the 1st defendant Boovaragavan Pillai had purchased an extent of 2 cents in undivided Gram Samuthayam property in R.S.No.331/24 under Ex.B.1/Sale Deed, dated 18.08.1958. But this defendant is in occupation of 2 cents in R.S.No.331/24 which is adjacent to their property i.e., on the western side. Likewise, the 2nd defendant's father purchased 4 cents in undivided Gram Samuthayam property in R.S.No.331/24 which is on the eastern side of the 1st defendants 2 cents. The 2nd defendant and his predecessor-in-title have been in possession and enjoyment of 4 cents in R.S.No.331/24 for a period of more than 50 years. The vendors of the plaintiffs have no right to sell an extent of 29 cents in R.S.No.331/24 and hence, the claim of plaintiffs for 29 cents in R.S.No.331/24 is unsustainable. The plaintiffs never had any exclusive possession over the entire suit property. The defendants are in possession of their respective undivided share in the 2nd item of the suit property. Hence, the suit for permanent injunction against the co-owner, who is in actual possession is not maintainable. Thus, by stating the above averments the 1st defendant prayed for the dismissal of the suit.