ILAYA PERUMAL NADAR Vs. TIRUNELVELI DIOCESAN TRUST ASSOCIATION

JUDGEMENT

(1.) THE defendant in the original suit, who figured as the respondent in the appeal before the lower appellate Court, has come forward with this second appeal challenging the reversing judgment of the lower appellate Court, namely Subordinate Court, Tuticorin dated 11. 12. 1996 made in A. S. No. 106 of 1994.

(2.) THE suit was filed by the respondent herein for a declaration that the respondent/plaintiff was the absolute owner of the property prescribed in schedule-II annexed to the plaint, for a mandatory injunction for the removal of fences made of palm leaves (olai fences), put up by the appellant herein/defendant and for recovery of vacant possession of the said property from the appellant/defendant. According to the respondent/plaintiff, 8? cents of land within four boundaries shown in the plaint 1st schedule out of 7. 23 acres of land comprised in R. S. No. 98/1 in Pannaivilaiputhur Village was purchased by the resident Christians of the said village in the name of one Manicka Nadar, an elder member of the congregation by virtue of a registered sale deed dated 11. 03. 1915 for constructing a Church. Later on the members of the Christian congregation of Pannaivilaiputhur endowed the said property to the plaintiff Trust along with the Church built therein. While constructing the Church, sufficient space was left on all four sides for taking out procession on festive occasions like Palm Sundays, etc. On the northern part of the plaint 1st schedule. On the north a width of 11? th feet on the north of the northern wall of the Church had been left vacant for the said purpose. In the above said vacant site lying on the north of the Church, one Thangaraj had encroached upon a portion on the north-western part, whereas the appellant/defendant made an encroachment on the north- eastern part. When the elders of the village demanded removal of the encroachment, the said Thangaraj agreed to remove the encroachment and executed an undertaking on 08. 12. 1992 in favour of one Samuel Nadar, whereas the appellant/defendant refused to remove the encroachment made by him. The portion encroached by the appellant/defendant in the property described in the plaint 1st schedule is the property shown in the IInd schedule. After the defendant made the encroachment in June 1992, he had put up fences on all other three sides, viz. , south, east and west, with palm leaves and enclosed the IInd schedule property along with his land that lies on the north of the same. As the persuasion made by the plaintiff and the village elders to remove the encroachment failed to bring result, a notice was issued to the defendant for which the plaintiff gave a reply denying the alleged encroachment and hence the plaintiff was constrained to file the suit for the above said reliefs.

(3.) THE suit was resisted by the defendant denying the plaint allegation that vacant space had been left on all sides of the Church for taking processions. The defendant has also contended that the suit IInd schedule property and the property adjoining the same on the north belong to the defendant and his brothers Thangapandi Nadar and Agasthiriya Nadar; that the defendant and his brothers as per patta are entitled to 6. 27 cents (0. 02. 5 hectare) and that they are enjoying the said property without making any encroachment over the property of the plaintiff. It is the further contention of the defendant that the descriptions given in the plaint are incorrect and insufficient for identification of the suit property and that the suit is bad for non-joinder of necessary parties, as the brothers of the defendant have not been made parties to the suit.