RATHINASAMY ALIAS RATHINAVELU Vs. P S RAJENDRAN

JUDGEMENT

(1.) THE decree and Judgment in A.S.No.9 of 1998 on the file of Court of Additional District Judge, Pondicherry at Karaikal which had arisen out of a decree and Judgment in O.S.No.18 of 1997 on the file of Court of the Principal District Munsif, Karaikal is under challenge before this Court by way of second appeal. THE plaintiff, who has succeeded before the trial Court but lost his case before the first appellate Court is the appellant herein. THE plaintiff has filed a suit for bare injunction.

(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 plaintiff is the son of deceased Kannaiyan and he has two brothers namely Thiru Kuppusamy and Thiru Packirisamy. THE plaintiff's father Kannaiyan was a cultivating tenant under the first owner of the plaint schedule property by name Janab Meera Mohideen Maricar in the year 1952. As per the agreement, plaintiff's father Kannaiyan was paying the rent of four bags of paddy to the first landlord viz., Janab Meera Mohideen Maricar till 24.4.1973. On 25.4.1973, the above said first landlord Janab Meera Mohideen Maricar had gifted the suit property to his son Janab S.M.Habeeb Mohamed, Advocate, Karaikal. Both the father and son had given a letter to the plaintiff's father intimating that the original owner Janab Meera Mohideen Maricar had execution the gift deed by him in respect of the suit property in favour of his son Janab S.M.Habeeb Mohamed and also instructed Kannaiyan to pay the future rent to his son Janab S.M.Habeeb Mohamed. As per the intimation and direction, the plaintiff's father Kannaiyan was paying the rent of four bags of paddy to Janab S.M.Habeeb Mohamed. After the death of Kannaiyan, his wife(Plaintiff's mother) had been paying the rent to Janab S.M.Habeeb Mohamed. After the death of plaintiff's mother, the plaintiff was paying the rent till the filing of the suit. THE plaintiff is not in talking terms with his brothers. Now the plaintiff is in exclusive possession and enjoyment of the suit property and he is paying four bags of paddy to Janab S.M.Habeeb Mohamed. On 23.10.1996, the plaint schedule property was sold to the defendant behind the back of this plaintiff. THE suit property consists of R.S.No.123/2, Tank and R.S.No.123/5 the unfertailed land. THE suit property is situate east of Athipadugai Road . In between Athipadugai Road and the suit property, there was a wall nearly about 6 feet height and 160 feet length approximately. THE aforesaid wall starts from R.S.NO.123/5 till the end of Ammavaikal. Now the defendant is trying to construct a permanent structure for the purpose of his cultivation. THE plaintiff is enjoying the peaceful possession of the suit property in R.S.No.123/2 by way of fishing. If the defendant has constructed permanent fencing in the suit property, the plaintiff will not enter into the suit property. THE rough sketch is filed along with the plaint. On 4.1.1997, the defendant and his henchmen are trying to construct a permanent fencing in R.S.No.123/5 without any notice to the plaintiff. THE plaintiff has lodged a complaint before the Thirunallar Police. Since the dispute is civil in nature, the concerned police does not entertain the case. Hence the plaintiff has come forward with the suit for permanent injunction restraining the defendant and his men from putting up any permanent fencing structure in the suit property. Hence the suit.

(3.) THE substantial questions of law involved in this appeal arei) Whether the first appellate Court is right in reversing the order of the trial Court granting permanent injunction, especially the plaintiff as a cultivating tenant under Habeeb Mohamed was not duly ejected from the suit schedule property by adopting due process of law?ii) Whether the first appellate Court is right in reversing the judgment of the trial Court, which clearly observed that in Ex A1 and Ex A2 the tenancy right of the plaintiff was accepted by Habeeb Mohammed and his father and the plaintiff was never ejected from the suit schedule property?iii. Whether the first appellate Court is right in reversing the judgment of the trial Court especially the defendant is a co-owner of the land with Habeeb Mohamed by his sale deed dated 23.10.1996 and he stepped into the half shoe of Habeeb Mohamed as a land lord of the plaintiff.