FOUSTIN THAMBI Vs. TRESSA AND OTHERS

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the Sub-Judge, Kuzhithurai, dated 13.3.2015 made in A.S. No. 128 of 2014, reversing the judgment and decree of the II Additional District Munsif, Kuzhithurai, in O.S. No. 70 of 1998 dated 7.10.2014.

(2.) The plaintiff in O.S. No. 70 of 1998 on the file of II Additional District Munsif, Kuzhithurai is the appellant herein, the respondents herein are the defendants. The appellant filled the suit for recovery of possession of the plaint schedule property.

(3.) The brief facts in the plaint is as follows : The plaintiff is the absolute owner of the plaint schedule property which has an extent of 1 Acre 40 Acre 40 Cents comprising 50 cents in Survey No. 1631/2 and 90 cents in Survey No. 1594/2 of Ezhudesom Village. The plaintiff purchased the property from his previous owner Haji Mohammed Meeran as per sale-deed dated 21.7.1977 registered as Document No. 1507 of 1977 of the Kollencode Sub-Registrar's Office. The plaintiffs vendor was entitled to the plaint schedule property as per sale deeds in document Nos. 1833 of 1966, 1429 of 1968, as per Release Deed Document No. 4909 of 1966 of Kollencode Sub Registrar's Office and as per the decree passed in O.S. No. 51 of 1966, on the file of the Sub-Court, Padmanabapuram. Plaintiffs vendor was the third defendant in the said suit. Plaintiffs vendor had been in absolute possession and enjoyment of plaint schedule property and the coconut trees standing thereon upto the date of absolute possession and enjoyment of the plaint schedule property since the date of sale in her favour. The patta for the plaint schedule property is in the name of plaintiff. The tax for the plaint schedule property is being paid by he plaintiff. The property having an extent of 90 Cents on the south Eastern side of the plaint schedule property was purchased by one Miss Lilly Thomas from Haji Mohammed Meeeran. The said Lilly Thomas is a friend of plaintiff. The plaintiff had constructed compound walls around the plaint schedule property and the property purchased by Lilly Thomas. The said Lilly Thomas had contributed her share for the construction of the compound wall. The plain tiff had planted coconut trees in the plaint schedule property and the trees are yielding. Lilly Thomas has planted coconut trees in her property. The plaintiff had been taking the yield from the property. The first defendant's husband and father of the other defendants Mariyanayagam is the 12th defendant in the aforesaid suit, O.S. No. 51 of 1986. Mariyanayagam had no manner of right interest or possession over the plaint schedule property. He was not entitled to any portion of the plaint schedule property as per the decree passed in O.S. No. 51 of 1996. The said Mariyanayagam tried to trespass into plaint schedule property and tried to create some evidence about his occupation. Plaintiff had given complaints to Police several times about the illegal attempts of the said Mariyanayagam for trespassing into the plaint schedule property. On 3.10.1987. Mariyanayagam had trespassed into the plaint schedule property with lot of men and unauthorisedly encroached into the plaint schedule property. The plaintiff gave complaint to the Police. The Police hesitated to evict Mariyanayagam. Since he was a very influential person. The plaintiff being a lady, could not resist Mariyanayagam had ab solutely, no right title or possession in the plaint schedule property. So, the plaintiff filed a suit in O.S. No. 717 of 1987 before District Munsif Court, Kuzhithurai for recovery of possessing of the plaint schedule property from Mariyanayagam. In the meantime, the said Mariyanayagam died on 29.10.1990. So, the plaintiff filed an application in I.A. No. 855 of 1991 to implead the defendants who are the legal representatives of Mariyanayagam as additional defendants 2 to 6. The plaintiff also filed an application before the Court to set aside the abatement order as I.A. No. 857 of 1991. Since the proposed additional 2 to 6th defendants of O.S. No. 717 of 1987, who are the present defendants, also attempted to encroach the plaint schedule property, the plaintiff filed an application as I.A. No 854 of 1991 before the Court for an interim injunction restraining them from encroaching the plaint schedule property along with a commission application as I.A. No. 860 of 1991. On 13.11.1996, the Court has dismissed all the said interlocutory applications and had dismissed the suit also. This Court has disposed of the revision application by holding that the dismissal of the revision petition will not stand in the way of the plaintiff filing a fresh suit on the same cause of action.