MEENAKSHISUNDARAM Vs. GOPALARATHNA MUDALIAR

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed suit O.S. No. 56/88 before the District Munsif Court, Thiruthuraipoondi, against the respondents herein for a permanent injunction restraining them from interfering with his possession and enjoyment of the suit property alleging as follows: He purchased the suit property of an extent of 54 cents out of. 2 acres 34 cents in S. No. 223/2 under Ex. A-1 on 8.8.1971 from one. Aravamudha Iyengar. In the same Survey Number, he bought a further extent of 1 acre 22 cents from one Ahamed Sultan Rowther under Ex. A--2 on 22.4.1979. Ever since the purchase, he had been in possession and enjoyment by cultivating them. THEre was a kanni vaikal (Channel) to the north of 54 cents may covered by Ex. A-1 and also 30 Palmyrah trees of the palmyrah trees, 20 were old trees and 10 were tender ones. After the purchase of the 54 cents, the appellants had been in possession of the palmyrah trees and also the channel. He had been using the channel for irrigating his lands covered by Exs. A-1 and A-2. Whileso, the second respondent, who was the owner of S. No. 224, and his father, the first respondent herein, due to enmity with the appellants husband started annexing the northern bund of the channel to the second respondent's property. With a view to prevent further annexation, the appellant applied to the Revenue Department, had the property in S. No. 223/2 measured and got a new survey number in respect of 1 acre 76 cents under S. No. 223/2-B. Survey stones were also planted for the appellant's property on 14.9.1992. Just prior to the planting of the survey stones the first respondent through his henchmen cut and, carried away 10 Palmyrah trees. In respect of this the appellant lodged a complaint with the police of Thiruthuraipoondi, but they did not take any action. Even after the planting of the survey-stones, the first respondent and his henchmen had been obstructing the enjoyment of the appellant of the channel and the 20 palmyrah trees. THE appellant lodged a complaint with the Revenue Department several times and also to the police. But, no action was taken. On 24.10.1982, the appellant caused a lawyer notice to be issued to which the first respondent sent a reply through his lawyer on 19.1.1983. THEreafter, the appellant's husband gave petitions to the Revenue Department and obtained an order stating that the channel on the northern side and the Palmyrah tress thereon were in S. No. 223/2-B belonged to the appellant. So far as the complaint given to the Police Department was concerned, the appellant was instructed to take civil proceedings. In view of the indifferent attitude of the Police and the Revenue Department, the appellant moved the Vacation Civil Court at Nagai by filing a suit in O.S. No. 222/84 and obtained an order of ex parte interim injunction on 24.5.1984. THE appellant also filed a caveat before the Vacation Civil Court at Nagapattinam under Caveat Petition No. 4/84. THE suit was transferred to the District Munsif's Court, Thiruthuraipoondi and renumbered as O.S. No. 236/84. THE temporary injunction continued.

(2.) THE respondents resisted the suit contending inter alia as follows: THE appellant did not obtain permission while withdrawing the suit O.S. No. 236/84 to file a fresh suit on the same cause of action. THE suit on the same cause of action by including the second respondent as a party, was not maintainable and it was liable to be dismissed in limine. THE second respondent was adopted son of one K. Krishnaswamy Mudaliar and still the appellant had deliberately shown the second respondent as the son of the first respondent. This had been done with some ulterior motive. THE Channel referred to did not belong to the appellant at all. All the northern and other southern owners were using the channel for irrigating their lands. This had been suppressed by the appellant. It was not true to say that the channel was situate in the appellant's property. In the sale deed Ex. A-1 dated 8.8.1971 it was clearly stated that the property was situate to the south of the channel. Even the parent deed of the appellant showed only that. THE predecessor in title of the appellant did not claim any right or title in either the channel or the trees on the northern boundary. Aravamudha Iyengar did not sell the channel or the trees to the north to the appellant. He did not have possession. THE channel irrigated lands in several survey numbers. THE lands in S. Nos. 224/3, 6 and 7 were originally owned by one Thiyagaraja Mudaliar and his son T.V. Ramalingam from whom the second respondent's adoptive father Krishnaswamy Mudaliar purchased them under three sale deeds Exs. A-7 to A- 9, all dated 30.9.1959 along with the palmyrah trees. In a family partition on 6.4.1970 those lands were allotted to the second respondent and ever since the second respondent was in possession and enjoyment. All the trees to the north of the channel belonged to the second respondent and his predecessors-in-title and they were in possession and enjoyment of the same. THE appellant did not enjoy either the palmyrah tree or the channel at any time. Even conceding without admitting that the northern bund and the trees thereon belonged to the appellant, the second respondent and his predecessors-in-title had been in possession and enjoyment of the same for well over the statutory period and had prescribed for title by adverse possession. THE title claimed by the appellant was barred by limitation. THE suit properties did not belong to the appellant nor were they in his possession. THE appellant could not maintain the suit. THE respondents were not aware of the alleged sub division and the planting of the survey stones. THEy did not have notice of any such proceedings. THE surveyor could not have measured the effected sub division and planted the trees. THE respondents were not bound by the same. It was not correct to say that the respondents cut ten Palmyrah trees. THE trees which caused obstruction for cultivation were cut by the second respondent. THE appellant had given false complaint to the Police Department and false information to the Revenue Department. THE Revenue proceedings were subsequent to the earlier suit. THEre was no cause of action for the suit. THE first respondent was an unnecessary party. THE suit was liable to be dismissed.

(3.) AS against these contentions, Mr. T.P. Manoharan, learned counsel for the respondents, submitted as follows: The surveyor's report also showed the channel only as Government channel and once the document relied on by the appellant showed the channel as Government channel, it was not open to the appellant to claim independent title to the same. The learned Counsel also submitted that there was a clear misreading of the boundaries in the documents by the appellant.