THAIYALAMMAL Vs. KULANTHIVELU MUDALIAR

JUDGEMENT

(1.) THIS appeal has been directed against the Judgment in A. S. No. 249 of 1996 on the file of the Court of Subordinate Judge, Kallakurich dated 29. 4. 1997. The plaintiff has filed a suit in O. S. No. 625 of 1989 before the District Munsif, Kallakurichi for bare injunction in respect of the plaint schedule property, a house and vacant site to an extent of 0. 00. 5 Hectares in R. S. No. 13. C/2a at Devapandalam Village, Kallakurichi Taluk. The learned trial Judge has decreed the suit but on appeal, the learned Subordinate Judge, Kallakurichi had allowed the appeal thereby setting aside the decree and Judgment of the learned trial Judge in O. S. No. 625 of 1989 which necessitated the plaintiff to approach this Court by way of second appeal.

(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 plaintiff. The plaintiff's father Dharmalingam was in possession and enjoyment of the plaint schedule property and the plaint schedule property is an ancestral property of the plaintiff. The plaintiff has put up a house in the plaint schedule property and the door Number for the said house is 75a. The defendant has no right or title in respect of the plaint schedule property. The defendant is never in possession and enjoyment of the plaint schedule property. The defendant has made an attempt to trespass into the plaint schedule property on 1. 8. 1989 which was timely prevented by the plaintiff. The plaintiff apprehends that the defendant along with his hench man may trespass into the suit property at any time. Hence the suit for bare injunction.

(3.) THE defendant in his written statement would contend that the plaint schedule property is not an ancestral property of the plaintiff. The plaintiff is residing at North street, A Pandalam Village. The plaintiff has not put up any construction in the plaint schedule property. There is an enmity between the Panchayat President and the defendant and with the help of the Panchayat President, the plaintiff has obtained clandestinely the house tax receipts and UDR Patta. The defendant has objected to the issue of UDR Patta and house tax receipts in favour of the plaintiff to the higher officials. The plaintiff was never in possession and enjoyment of the plaint schedule property. The plaint schedule property was originally belonged to the defendant's father Vaithi Mudaliar who had executed a sale deed in respect of the plaint schedule property in favour of Kuppu Mudaliar on 3. 8. 1938. The defendant was working in the rice mill of Kuppu Mudaliar. Under such circumstances, the said Kuppu Mudaliar had sold the plaint schedule property in the year 1944 orally to the defendant. The defendant is in possession and enjoyment of the plaint schedule property for the past 45 years and the defendant has prescribed title to the plaint schedule property by way of adverse possession. The allegation that the defendant had made an attempt to trespass into the plaint schedule property on 1. 8. 1989 is false. The suit is not maintainable. The plaintiff has no cause of action. Hence the suit is liable to be dismissed.