PONNUSWAMY NADAR Vs. GUNANELLIAN SOCIETY KARUMATHUR

JUDGEMENT

(1.) THIS appeal has been directed against the Judgement in A. S. No. 26 of 1995 on the file of the Court of Subordinate Judge, Cudalore dated 8. 7. 1998 which had arisen out of a decree and Judgment in O. S. No. 125 of 1993 on the file of the Court of Additional District Munsif, Cuddalore. The plaintiffs who have succeeded before the trial Court but lost their case before the first appellate Court are the appellants herein.

(2.) THE short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaint schedule property belonged to the father of the plaintiffs viz. , Kaliappa Nadar. While, Kaliappa Nadar was alive, he had enjoyed the plaint schedule property for more than 35 years and died in the year 1989. Even after his death, the plaintiffs are in continuous possession and enjoyment of the plaint schedule property. No one else in possession and enjoyment of the plaint schedule property except the plaintiffs. While so, the defendant has purchased some property near the plaint schedule property from one Dhanabakkiam Ammal in order to grab at the property of the plaintiffs, the defendant has included the plaint schedule property also in his sale deed taken from Dhanabakkiam Ammal. The defendant, in order to defeat the interest of the plaintiffs, had filed a petition before the Tahsildar, Cuddalore for transfer of patta in their names. The said petition was also dismissed by the Tahsildar on 23. 12. 1991 holding that the suit property belonged to the plaintiffs' father. No appeal was preferred against the order by the defendant. On 5. 2. 1993, the defendant made an attempt to trespass into the plaint schedule property. Hence the plaintiffs have come forward with the suit for bare injunction.

(3.) THE former President of the defendant society viz. , John Bosco in his written statement would contend that the suit property belonged to the plaintiffs' father Kaliappa Nadar and later after his death, the plaintiffs became entitled to the property are not true. The plaint is silent about the source of title or nature of acquisition of title by the plaintiffs' father. The defendant purchased the suit property from Dhanabakkiam Ammal under the sale deed dated 7. 9. 1988 for a valuable consideration of Rs. 23,250/- in the name of Guanellian Society, Karumathur , Madurai. The title therefore vested in the said society belonging to the "congregation of the Servants of Charity". The predecessor in title of the defendant viz. , Dhanabakkiam Ammal had purchased the said property under a sale deed dated 5. 2. 1969. The Vendor under Dhanabakkiam Ammal viz. , V. P. Radhakrishnan who had purchased the property under a registered sale deed dated 22. 4. 1961, There was no order passed by the Tahsildar holding that the plaintiffs and their predecessor in title have title to the property. There was no order passed on 23. 12. 1991 in favour of the plaintiffs by the revenue authorities. From the date of purchase of the property, the defendant is in possession and enjoyment of the same. The property purchased by the defendant was demarcated from the other lands on all four sides by the existence of a live fence. The property has been potentially a "karambu Land" for several years and the defendant representing the Society, has been exercising acts of ownership by removing the shrubs in the property, periodically pruning the live fence etc. , The possession of the suit property with the defendant-Society follows title and the averment that the defendant has been attempting to trespass into the suit property since 5. 2. 1993 is false. The plaintiffs have no cause of action. Taking advantage of some mistake in the revenue entries during resurvey proceedings, the plaintiffs have come forward with this frivolous suit. The plaintiffs suit for injunction is therefore not maintainable. The suit filed without impleading the true owner of the property viz. , Guanellian Society belonging to the Congregation of the Servants of Charity located at Karumathur, Madurai is not maintainable. The suit is bad for non joinder of necessary parties. Hence the suit is liable to be dismissed.