K SUBRAMANIAM Vs. P KARUPPANANADAR

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 16 of 1996 on the file of the Court of Additional Subordinate judge, Erode. The plaintiffs who have lost their case before the Courts below are the appellants herein. The suit is for mere injunction in respect of the eastern fence in R. S. No. 245/5 which is shown as "bc" in the plaint plan (EX C2 ).

(2.) THE averments in the plaint in brief sans irrelevant particulars are as follows: THE suit property originally belonged to the plaintiffs and their brother Kolandasamy. THE total extent of the plaint suit survey No. 158 in Kulavillakku Village of Erode Taluk is 4. 05 acres. THE plaintiffs and their brother Kolandasamy were entitled to undivided "th share in the above said property. On 2. 1. 1976, they have mortgaged the same in favour of one ramasamygounder of Ayappaarappu for a sum of Rs. 4,000/ -. Subsequently, the said mortgage debt was discharged. THE re-survey Number assigned to the old Survey no. 158 is R. S. No. 245. THE owners of the suit survey field viz. , R. S. No. 245 orally divided the property in which the plaintiffs have been allotted to an extent of 0. 45. 5 hectares on the north eastern corner with a right to use the north-south cart track on the eastern side. On 22. 1. 1990, a partition list was prepared evidencing the aforesaid oral partition. In the re-survey proceedings, the lands of the plaintiffs have been given a separate number as 245/5. In the plaint plan, the suit property has been shown in green colour. On the east of r. S. No. 245 is R. S. No. 246 belonging to the defendants. THEre exists an age-old fence in between the aforesaid survey fields. THEre are number of age old trees in the said fence. THE said fence is marked as "bc" fence in the plaint plan. THE plaintiffs and their predecessors-in-title were in possession and enjoyment of the "bc" fence along with their lands in R. S. No. 245 from time immemorial. THE defendants have no manner of right, title or possession beyond "bc" fence. THE defendants have made a request to the plaintiffs to sell the suit property to them. Since the plaintiffs have refused to oblige the request, the defendants with a bad motive attempted to cut the "bc" fence on 20. 6. 1990 and tried to trespass into the suit property. THE said attempt of the defendants was prevented by the timely intervention of the plaintiffs. THE plaintiffs apprehend that the defendants may at any time repeat their attempt to trespass into the suit property. Hence the suit for injunction.

(3.) ON the basis of the evidence both oral and documentary available before the trial Court, the learned trial Judge has come to a conclusion that the plaintiffs are not entitled to any relief asked for in the plaint and consequently dismissed the suit without costs. Aggrieved by the findings of the learned trial judge, the plaintiffs have preferred an appeal in a. S. No. 16 of 1996 on the file of the Court of Additional Subordinate Judge, erode and the learned first appellate Judge has also dismissed the appeal thereby confirming the decree and judgment of the learned trial Judge. Hence, against the concurrent findings of the Courts below, the plaintiffs have been before this Court by way of second appeal.