D JAGANATHAN Vs. D DAMODHARAN

JUDGEMENT

(1.) The defendant in O.S.No.5114 of 2002 on the file of the learned III Assistant Judge, City Civil Court, Chennai is the appellant and the respondent herein is the sole plaintiff in the suit. The said suit was filed for declaration that the defendant is a trespasser into the suit property, for a direction to the defendant to quit and deliver vacant possession of the suit property to the plaintiff and for a direction to the defendant to pay a sum of Rs.28,000/ - towards damages for unlawful use and occupation of the suit property from 08.05.2000 and also for permanent injunction to restrain the defendant from alienating or letting out the suit property or from causing encumbrance whatsoever over the suit property. The trial court by decree and judgment dated 30.06.2009, decreed the suit as prayed for. As against the same, the appellant herein filed an appeal in A.S.No.236 of 2010 before the learned I Additional Judge, City Civil Court, Chennai. By decree and judgment dated 16.09.2014, the First Appellate Court dismissed the appeal, thereby confirming the decree and judgment of the trial Court. Challenging the same, the defendant in the suit is before this Court with this second appeal.

(2.) The case of the plaintiff/respondent herein is as follows: - The suit property is a portion of the superstructure at Door No.13, Thiruvalluvar Salai, Second Floor, Teynampet, Chennai, measuring 300 sq.ft. The suit property is part and parcel of a 3 storeyed building, constructed on the land comprised in Survey No.3774/3. Originally, the land in Survey No.3774/3 was a vacant site, measuring 545 sq.ft. The land was allotted to the father of the plaintiff, by name Devaraj in the family partition. Mr. Devaraj had three sons and two daughters, who are the plaintiff, the defendant and one Kumar and one Shanthi and Rani. According to the plaintiff, Mr.Devaraj, during his life time had given a letter of authorization under Ex.A5 to the plaintiff to spend his own money to construct the superstructure on the said property. Thus, according to the plaintiff, by spending his own money and out of his own efforts, he constructed the three storeyed building on the said vacant site. In one of the floors, he is residing and the others have been rented out to the tenants. According to the plaintiff, he has been collecting rent from the tenants. While so, on 04.01.2000, Mr.Devaraj issued a notice to the plaintiff, wherein, he contended that the property was not that of the exclusive property of the plaintiff. This gave rise to the cause of action for the plaintiff to file a suit. Therefore, the plaintiff filed an earlier suit in O.S.No.2481 of 2000 against his father Mr.Devaraj and his brothers Mr.Jeganathan (the appellant herein) and one Kumar. That suit was for permanent injunction to restrain the defendants therein from disturbing his right to possess the superstructure. That suit was decreed by the trial court. As against the same, the appellant herein filed an appeal in A.S.No.339 of 2008 and that was dismissed by the lower appellate court. As against the same, Mr.Jeganathan filed a second appeal before this court. But, at that time, it came to light that Mrs.Rani, who was added as a party died, but her legal representatives were not added. Therefore, this Court in the second appeal, which is yet to be admitted, observed that the remedy for the appellant herein is to make an application before the Lower Appellate Court in A.S.No.339 of 2008 to implead the legal representatives of Rani. Thus, the suit in O.S.No.2481 of 2000 has not yet reached finality and the same is pending by way of a second appeal before this Court and also by way of an interlocutory application before the lower appellate court.

(3.) Be that as it may, now coming to the present suit, during the pendency of O.S.No.2481 of 2000, which was filed on 02.01.2000, it is alleged that on 05.05.2000, the appellant herein who was one of the defendants in O.S.No.2481 of 2000 trespassed into the second floor of the superstructure, which is the suit property in the present suit. According to the plaintiff, he has got no right to disturb the possession of the plaintiff and to trespass. Since the appellant, according to the plaintiff, had trespassed into the suit property on 05.05.2000, it has become necessary for him to file the present suit for the reliefs mentioned herein above. In this suit, the appellant contended that his father never gave any such authorization to the plaintiff to make construction of his own by spending his money. It is his further contention that the superstructure was constructed by Mr. Devaraj. It is the further case of the appellant that he did not trespass into the second floor of the superstructure and he was all along in possession.