VENKATACHALA GOUNDER Vs. PERIYASAMY GOUNDER

JUDGEMENT

(1.) THOSE appeals are filed against the common judgment and decree passed in A.S. Nos. 21 of 1983 and 35 of 1983 on 22.12.1983 by the learned Subordinate Judge, Tiruppur.

(2.) THE plaintiff - Venkatachala Gounder in O.S. No. 476 of 1980 has come forward with the suit tor permanent injunction restraining the defendant-Periasamy Gounder from interfering with his peaceful possession and enjoyment of the suit property on the following grounds:- THE suit property has come to be owned by the plaintiff as per the decision of partition decree in I.A. No. 1031 of 1969 in O.S. No. 365 of 1965 on the file of the learned Subordinate Judge, Coimbatore. THE plaintiff has been in possessio n and enjoyment of the suit property in his own right and the defendant has no right or title or possession in the said property. Since the defendant was unsuccessful in purchasing the above said property, he is interfering with the possession and enjoyment of the plaintiff and therefore, the plaintiff has come forward with the suit as mentioned above.

(3.) IT is evident from the case put forward by the respondent that the above said Nachimuthu Gounder had borrowed loan from one Sait, who obtained a decree against the above said Nachimuthu Gounder, that the above said decree was made over to Rackiappa Gounder, who in turn had brought the 2/5th share of Nachimuthu Gounder in S. No. 4/1 measuring 4.35 acres, that is 1.74 acres in court auction for realising the decree debt that the respondent herein had purchased the above said 1.74 acres out of 4.35 acres, namely 2/5th share in Court auction in E.P. No. 2158 of 1969 in O.S. No. 150 of 1967. On 10.9.1968, as seen in Exs. B-1 and B-2 and that he look symbolic possession of the above said site of 1.74 acres out of 4.35 acres on 9.1.1970, as seen in the possession receipt, Ex. B-3 and the report of the belief, as seen in Ex. B-4. To support the alleged fact of taking symbolic possession by the respondent through Court, the respondent has examined as DW2, Muthusamy Gounder, who is said to have attested the possession receipt, at the time of alleged delivery of the suit property symbolically on 9.1.1970. There can be no doubt that the respondent had purchased Nanja lands measuring 1.74 acres out of 4.35 acres in S. No. 4/1 at Nallur Village, Palladam Taluk in the Court auction, as mentioned above. But the fact remains that the respondent was not put in actual possession if the suit property at the time of filing of suit in O.S. No. 939 of 1980 for the relief sought for in the above said suit.