M S KARUPPANNA NADAR Vs. NARIYAN ALIAS SHANMUGHAM

JUDGEMENT

(1.) THE plaintiff who lost in both the courts is the appellant. At the time of admitting the Second Appeal and while framing the substantial question of law this court observed as follows: -

(2.) ORIGINALLY the suit was for permanent injunction restraining the defendant, his men, servants or agents from interfering in any manner with the plaintiff -s peaceful possession and enjoyment of the suit property viz., 1.86 acres of Natham Manthai Poramboke land which forms part of A Schedule Property. Later on, the plaint was amended for the alternative relief of directing the defendant to put the plaintiff in possession of the B Schedule Property, if the defendant is found to be in possession of the same. The plaint goes on the footing that the suit property has been having a sugarcane crushing shed crushing room, crushing machine and a hay rick. In respect of the suit property, already there was a dispute between the plaintiff and one Palaniappa Nadar son of Nachimuthu Nadar residing at Thirumakkudaloor. There is a suit in O.S.No.1129 of 1967 wherein the plaintiff obtained a decree for permanent injunction in respect of the same property on 30.11.1971. In that suit a Commissioner was appointed and he has filed a report with a plan. The plaintiff claimed that the suit property is 1.86 Acres, but in boosthithi the plaintiff has been in actual possession and enjoyment of about 1.63 Acres as observed by the Commissioner in O.S.No. 1129 of 1967. It was submitted that whatever may be the extent mentioned in the B Memo the actual extent within the four boundaries alone will prevail. The plaintiff further accepted that the defendant was attempting effectively to encroach over some portion of the suit property. Hence the suit for injunction.

(3.) IN the additional written statement, the defendant contended thus: - The site marked by the Commissioner as E has been given by the defendant to the plaintiff for the purpose of putting sugarcane crushing shed and on such permission the plaintiff was in possession of the same. His possession is not as a matter of right. The plaintiff after having known that he has not been in possession and enjoyment of the suit property has come forward with the alternative relief. The suit property belongs to the Government. Except the Government, others have no right to evict the person in possession of the said property. The defendant therefore prays that the suit may be dismissed with costs.