S GOVINDASAMY Vs. GAJALAKSHMI

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 14 of 1995 on the file of the Court of Subordinate Judge, Poonamallee dated 8. 12. 1995. The plaintiff in O. S. No. 703 of 1985 on the file of the Court of District Munsif, Poonamallee is the appellant herein. The plaintiff has filed the suit for declaration and injunction in respect of the suit property.

(2.) THE short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: the suit property belonged to the plaintiff absolutely and he is in possession and enjoyment of the same by constructing a hut in the suit property. The suit property was assigned in favour of the plaintiff by the Government under the proceedings of the District Collector in R. Dis. No. 81289/80/n. 2 dated 3. 11. 1980. The plaintiff has filed assignment order along with the plaint. He is also paying house tax for the residential hut and also paying assessment tax to the suit site. The defendant is owning the adjacent plot No. 5 to the east of the suit property,who is having no interest in the suit property is making attempt to grab at the suit property of the plaintiff by illegal means. The defendant is also trying to cause cloud upon the plaintiff's title to the suit property. The suit property is different from the defendant's property. Under the guise of the decree obtained by the defendant against his brother Ramu and others in O. S. No. 169 /1977 on the file of the Court of District Munsif, Poonamallee is trying to dispossess the plaintiff from the suit property. The plaintiff is not a party to the said suit. The suit property in O. S. No. 169/1977 is totally different from the property in the suit. Hence, the defendant cannot claim any right or title to the suit property. Hence the suit.

(3.) THE defendant in his written statement would contend that the suit is not maintainable under law and facts. The suit is a vexatious and frivolous one. The averment in the plaint that the plaintiff is the owner of the suit property and he is in possession and enjoyment of the suit property are false. The important material facts have been omitted to be stated by the plaintiff in the plaint. The plaintiff has filed O. S. No. 999 of 1979 on the file of this Court for permanent injunction and the suit property in the said suit is a thatched hut and premises measuring 0. 01 cents in village Natham S. No. 207 at Ramapuram, Ambattur, Saidapet Taluk, bounded on the north by Mudaliar's house. South by road east by defendant's site and west by Sulaiman's site. The suit property in the present suit is the same with the difference of small area and lineal measurements. The said suit in O. S. No. 999 of 1979 is dismissed. The fact in the above said suit and the present suit are one and the same. The issue arises for consideration is also one and the same. Hence the suit is barred by the principle of res-judicata. The defendant is the absolute owner of the suit property and the Government has assigned the said property in favour of the defendant and the defendant is in possession and enjoyment of the same as early as in 1956. The property assigned in favour of the defendant includes suit property and the suit property is in the occupation of the defendant. This defendant was in possession and enjoyment of the suit property for more than three decades. This defendant constructed a thatched superstructure in a portion of the entire property belonging to him and permitted his brother one Ramu @ Raman to reside there, since he was unemployed. The said Ramu @ Raman along with one Anandan committed acts of waste on 26. 11. 1977 to the tune of Rs. 1000/- by cutting and carrying away the trees of 21 years old on the western boundary of this defendant, which is also western boundary of the suit property. Since the act of Ramu @ Raman is detrimental to the interests of this defendant,he issued a lawyer's notice dated 29. 11. 1977 calling upon him to vacate the property. Since the said Ramu failed to vacate, this defendant filed a suit in O. S. No. 169/1977 on the file of this Court. The said Ramu died pending suit. His wife Lakshmiammal was impleaded as a party in the said suit as a legal heir to the said Ramu @ Raman. This defendant also filed another suit against the said Ramu @ Raman and Anandan, for damages of Rs. 800/- in O. S. No. 365 of 1977 on the file of this Court. Both the suits are decreed in favour of this defendant. Subsequently, the plaintiff has filed a suit against the defendant in O. S. No. 999 of 1979 on the file of this Court for a permanent injunction and the suit property in the said suit is the one and the same in the present suit. O. S. No. 999 of 1979 was also decided in favour of this defendant. The matters in issues in the suits O. S. Nos. 169 of 1977, 365 of 1977 and 999 of 1979 are the same as in this suit and hence this suit is barred by the principles of res-judicata. The plaintiff has filed a suit in O. S. No. 999 of 1979 alleging that she had purchased the suit property from Kasthuriamml. In the meantime, the plaintiff seems to have got the alleged assignment order after obtaining a sale deed from Kasthuriammal while, O. S. No. 999 of 1979 is pending. Therefore, the said assignment order dated 3. 11. 1980 will not confer any title to the defendant. The defendant is the absolute owner of the suit property. The defendant has a valid legal right by way of executing decree in O. S. No. 169 of 1977. There is no cause of action for the suit. The court fee paid in the plaint is not correct. Hence, the suit is liable to be dismissed with costs.