GOPALAKRISHNAN Vs. KALYANASUNDARAM

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree, dated 2.3.1995, made in A.S.No,205 of 1993, on the file of the District Court, Nagapattinam, reversing the judgment and decree, dated 30.7.1993, made in O.S.No.108 of 1989, on the file of the Sub Court, Mayiladuthurai.

(2.) THE plaintiffs in the suit are the appellants in the present second appeal. THE plaintiffs had filed the suit for declaration and for injunction. In the plaint filed in the suit, in O.S.No.108 of 1989, it has been stated that the suit property is a pond called `Ambattan Kuttai", with an extent of 31,087 Sq.Ft., surrounded by a live fence on all four sides, in T.S.No,399 in Pulian Street, Pattamangalam, Mayiladuthurai. It has been further stated that the plaintiffs and the others, belonging to the Barber community, living in Pulian Street, have been using the pond to carry on their occupation for over five generations. Every year the plaintiffs and the others belonging to their community were taking away the fish caught by them from the pond. THE pond which had been given to the ancestors of the plaintiffs, as a consideration for carrying on their occupation, has continued to be in their enjoyment till the filing of the suit. THErefore, the pond has been named as "Ambattan Kuttai". However, there are no documents relating to the plaintiffs' rights, in respect of the said pond. It is only a practice that has been followed for hundreds of years, in Tanjore District.

(3.) IN the written statement filed on behalf of the defendant it has been stated that the suit property is a poramboke pond and it is not called as "Ambattan Kuttai", as claimed by the plaintiffs. It is false to claim that the plaintiffs and the members of their community alone are having the right of catching fish from the pond. Further, the claim of the plaintiffs that certain rights had been given to the plaintiffs and their ancestors, as a consideration for carrying on their operation of barbers in the village concerned, had been denied. The District Collector had, in fact, refused to grant patta, as claimed by Jaganatha Pandithar, the father of the plaintiffs. The defendant had further claimed that he is an ex-service man belonging to Adi Dravidar community. The defendant had stated that the pond has not been used as a pond and since there is no way for the water to reach the pond only certain wild varieties of plants have grown in the area. Further, since the area has been converted into housing plots, the defendant had submitted a petition to the District Collector for granting of patta to the defendant in the suit property. It has also been stated that the plaintiffs had removed the house built by the defendant in the suit land. The plaintiffs do not have any legal right to file the suit, as it is a Government poramboke and the suit is liable to be dismissed for making false claims and for not impleading the Government, as a party to the suit.