R PUSHPAKALA Vs. M PONNANAINTHA PERUMAL

JUDGEMENT

(1.) The unsuccessful defendant is the appellant. The suit is filed for permanent injunction restraining the defendant from trespassing, encroaching or putting up any construction in the plaint schedule property and for mandatory injunction to remove the illegal construction including the shed put up in the suit property by violating the decree in O.S.No.53 of 2010, dated 12.08.2010.

(2.) The case of the plaintiff is that the suit property, measuring an extent of 7-1/2 cents, originally belonged to Muthu Nadar, who is the father of the plaintiff. He had been in possession and enjoyment of the same by putting up a construction. In the year 1983, the said Muthu Nadar had settled northern 3 cents of land and building thereon in favour of younger brother of the plaintiff by name Kumaresan. In 1985, the said Kumaresan had sold the said 3 cents of land to the another brother of the plaintiff viz., Duraimoni, who, in turn, sold the same to one Annakili, who is the sister of the plaintiff and Kumaresan. The said Annakili had sold 1 cent out of 3 cents to the plaintiff in the year 1995 and the balance 2 cents of land was dealt with by one Thirumal, who, in turn, sold the same to the defendant's vendor by name Samadhanam. In the year 1988, the plaintiff had bequeathed 2-1/2 cents from his father. The plaintiff's father had settled another 2 cents in favour of the plaintiff's another sister by name Saraswathi. When the actual area was only 3 cents, in the settlement deed executed in favour of Kumaresan, it was falsely stated as 4 cents. The defendant's vendor has no right over 3 cents in the plaint survey number, as the predecessor in title of the defendant's vendor had already sold 1 cent to the plaintiff. The remaining area was only 2 cents. Since the defendant's vendor - Samadhanam attempted to encroach upon the said 1 cent land, the plaintiff had filed a suit in O.S.No.53 of 2010 for declaration of title and injunction, in which the defendant's vendor - Samadhanam remained ex parte and the suit was decreed on 12.08.2010. But, the said Samathanam had fraudulently sold the property on 13.09.2010 in favour of the defendant. As the defendant was attempting to put up a construction in the plaint schedule property, the plaintiff had filed the suit.

(3.) In the written statement, the defendant had stated that one Thirumal had purchased 4 cents of lands in the plaint survey number and out of the same, northern 3 cents were sold to one Samathanam, who, in turn, sold the same to the defendant and the defendant has been in possession and enjoyment of the same from the date of purchase. The southern 1 cent land was already left over to the plaintiff by the vendor of the defendant. The present suit property was not included in the schedule property in O.S.No.53 of 2010. Thus, he prayed for dismissal of the suit.