G. SINGARAVEL NAIDU Vs. S. GOVINDASAMY MUDALIAR

JUDGEMENT

(1.) The defendant is the appellant in the second appeal. The respondent filed O.S.No. 60 of 1981 before the District Munsif of Nagapattinam for a permanent injunction against the appellant.

(2.) The case as set out in the plaint was as follows; The suit property which was classified as dry in the revenue records was purchased by the respondent under Ex.A -1 on 25.6.1973 from one Mangayarkarasi of Sikkal village and he had been in possession of the same by changing the patta and paying the kist due to the Government. The suit property had been fenced in its North, South and East and a way out to lead to the respondent's house portion on the West. There was a way to go to the tank which was on the southern side of the suit property. There were four coconut trees and bamboo clusters and the respondent recently raised plaintain saplings in the suit property. He was having his house and backyard just to the west of the suit property. The location of the suit property was shown in a rough sketch appended to the plaint. The appellant was having his residential house just adjacent to the East of the respondent's house. In between the houses and backyards of the parties there was a pucca fence, demarcating the boundaries. The northern fence in the suit property was a dividing line for the backyard of the appellant's property and the suit property. In 1978 there was a dispute in respect of the northern fence of the suit property when the appellant resisted the respondent from effecting repairs of that fence. Thereupon a Panchayat was convened and the mediators obtained Muchalika from both parties and the appellant had undertaken not to disturb the northern fence of the suit property. The appellant again attempted to remove the northern fence at about 7 a.m. on 24.2.1981 and also to close the western way to the suit property by putting a bamboo thatty. The respondent resisted those actions and also complained to the Kivalure police. But the police did not take proper action. Taking advantage of the inaction of the police, the appellant again attempted to remove the northern fence and close the western way. The suit was therefore necessitated.

(3.) The appellant resisted the suit contending inter alia as follows: The respondent had no title nor possession to the suit property. The plaint plan is misleading. The existence of a cattle shed was not mentioned. The appellant's house had been shifted and was shown in a wrong place. There was no description or any identified marks to know which part of the plan was the suit property. The appellant inferred that ABCD might indicate the suit property. He purchased the property in the year 1980 under Ex.B -2 from one Packirisamy Naidu and another. The property thus purchased was the house and house site just east of the respondent's property and both the properties faced north. The western wall of the appellant's house purchased by him in the year 1980 was there with a live fence with trees running north to south from the southern phase of the walls western wall of the appellant's house. That fence was leading up to the fence owned by a Muslim Gentlemen. So also the southern fence of the respondent's house and house site belonged to the same Muslim Gentleman. The respondent purchased a property comprised within the following boundaries, namely, South of the North street, west of the appellant's house and the backyard and north of the Muslim Gentleman's land. This itself amply proved that the respondent had not purchased the suit property. So without having any title or possession he had no right to file the suit for permanent injunction. The coconut trees and other plants within the suit property were raised by the appellant. Since the respondent had no access to go to the tank from his backyard, he had been making a false claim in the appellant's property. To that end, he made a fictitious claim to the suit property. There was no fence at all at AB points. But there was a fence at points GD which was and up to which the appellant had got his right. That fence belonged to Kareem Maraicair. After the purchase of the property by the appellant, the respondent had been giving trouble to the appellant. He attempted to meddle with the south to north fence in between AD space and therefore a Panchayat was convened and the Panchayatdars advised the respondent not to remove that fence thereafter. On the other hand, the document had been misinterpreted in the plaint. No incident took place on 24.2.1981. On the other hand the respondent attempted to remove the western fence and when the appellant's wife, daughter and the son protested for the same, the respondent caused injuries to them by pelting with stones. So a criminal case was given and it was pending investigation. There was no cause of action.