LAWS(MAD)-2007-11-527

SRINIVASAN Vs. SEENIKONAR

Decided On November 13, 2007
SRINIVASAN Appellant
V/S
TAHSILDAR, KARAIKUDI, P.M.T.DISTRICT Respondents

JUDGEMENT

(1.) THE unsuccessful plaintiff, after having failed to succeed in the legal battle before the Courts below, has brought forth this second appeal. The appellant herein had filed O. S. No. 142 of 1992 on the file of the learned district Munsif Court, Devakottai for declaration, mandatory injunction and permanent injunction.

(2.) ACCORDING to the plaint averments, the suit property was the ancestral property of the appellant. He had constructed a compound wall on the western boundary of the suit property, put up barbed wire fence on all other three sides and kept the suit property under his exclusive possession and enjoyment. He has also constructed a small tiled house in the suit property and is residing therein. The balance area is in his use as a space for tying cattle, spreading the vessels for the purpose of washing and for putting up hay-stacks. In between the suit property and the property of the first respondent, there is a vacant space classified as natham poramboke used by the village public as a passage, and for draining the rain waters. While so, the first respondent put up a compound wall close to the eastern fence of the appellant leaving only a 3 feet space for the use of the public for the above said purposes. The same was reported to the second respondent, when the construction of the wall was in progress. But the second respondent kept quiet till the completion of the construction and thereafter, instead of taking action against the first respondent, issued a notice to the appellant herein as if he had occupied a portion in the use of the public as a public street and as a place for parking their carts. In the above said circumstances stated in the plaint, the appellant was constrained to file the suit for declaration of his title and permanent injunction in respect of the suit property and for a mandatory injunction for the removal of the compound wall put up by the first defendant.

(3.) THE second respondent (Tahsildar), arrayed as the second defendant in the suit, did not contest the same and remained exparte. The first respondent/first defendant resisted the suit contending that there was no encroachment of the street portion by the first respondent as alleged in the complaint; that the first respondent's wall had been constructed only on the border of his property; that the said wall was constructed more than 30 years prior to the date of filing of the suit and that the suit property was a natham poramboke land used as public street and a place for parking the carts of the villagers. He had also contended that pursuant to the notice issued by the second respondent (Tahsildar), the appellant gave a statement admitting that he had encroached upon the above said property which was earmarked for public use and undertaking to remove the fence and clear the encroachment made by him and that thereafter, without complying with the said undertaking, the appellant, with ulterior motive, approached the Court with the false case.