SHANMUGAM Vs. GURUSAMY

JUDGEMENT

(1.) THE plaintiff is the appellant in S. A. No. 83 of 2007 having lost in both the courts below in respect of his claim for permanent injunction restraining the defendants from trespassing or entering any portion of the suit property and putting up any construction. That was the suit filed by the appellant in O. S. No. 871 of 1997, which was dismissed and the appeal in a. S. No. 2 of 2003, which was also dismissed by the first appellate court.

(2.) THE first defendant in O. S. No. 871 of 1997 Gurusamy has filed a suit in O. S. No. 879 of 1997 for an injunction against the appellant in both the appeals from interfering with his construction work and possession of the suit property. THE trial court has dismissed the said suit by way of a common judgment in O. S. No. 871 of 1997 and 879 of 1997. On appeal by the said plaintiff Gurusamy the first appellate court in A. S. No. 34 of 2002 has granted a decree of injunction and it was as against the said judgment, the defendant has filed the second appeal in S. A. No. 82 of 2007.

(3.) THEREFORE, I do not think it is necessary to remand the matter back once again to the first appellate court for a decision in a. S. No. 2 of 2003. A reference to the pleading shows that originally, a larger extent of nearly 57" cents comprised in S. F. No. 336/1 belonged to kaliappa Gounder and Karuppasamy Gounder and as per the oral division among them, they have been enjoying the properties in division for many years and the northern side was allotted to Kaliappa Gounder and the Southern side to karuppasamy Gounder and it was subdivided as S. F. No. 336/1d. The plaintiff in o. S. No. 879 of 1997, who is the respondent in the appeals have purchased the said property, which is the subject matter of suit on 30. 10. 1995. It is seen that the other co-owner Kaliappa Gounder has borrowed an amount from one Palanisamy gounder and he died without discharging the debt. A suit was filed in O. S. No. 12 of 2003 for recovery of amount by Palanisamy Gounder against the legal heirs of kaliappa Gounder. There was a decree and in execution of the decree in e. P. No. 130 of 1989 on the file of the Sub Court, Udumalpet, the suit property in O. S. No. 871 of 1997 was brought to sale and the plaintiff in O. S. No. 871 of 1997, who is the appellant, is the court auction purchaser in the auction held on 20. 06. 1990 and the said sale was confirmed on 22. 08. 1996. The plaintiff in o. S. No. 871 of 1997 has filed E. A. No. 742 of 1990 for possession and since there have been some obstructions, the matter is pending enquiry before the Sub Court udumalpet. THEREFORE, the plaintiff in O. S. No. 871 of 1997 is a court auction purchaser in respect of the suit property, which belongs to the portion of kaliappa Gounder and has not been given possession.