High Court not inclined to reappreciate the evidence for replacing the findings of the lower court.

1.The defendant is the appellant.

2.The brief facts of the plaintiff's case are as follows:-

The suit property is a village samudayam land and there are 50 pattadars to the suit property. The plaintiff's paternal grand father, Saminatha Padayachi was one among the 50 pattadars. A suit in OS.No.68/1932 was filed by 28 pattadars, against the remaining pattadars for partition, in respect of the suit land, among other properties, in which the plaintiff's grand father was the 3rd defendant. The suit property was shown as item 16 in Schedule-A and the said suit was compromised and a final decree was passed, in respect of items 1 to 15 and leaving the rest of the property as common properties, to be enjoyed by the pattadars in common. The intention of the pattadars for retention of the suit property was, for the use of the temple, viz. Droupathi Amman Temple, which is situated in a portion of the suit property. As the suit property is a village samudayam land, all the pattadars are co-owners and no division of the property took place. The defendant had purchased the undivided share of some pattadars and on the strength of the said purchase, the defendant had put up walls on the southern portion of the suit property and the same was protested by the plaintiff and despite that, the defendant put up the construction and also declared that he is going to construct a rice mill building in the suit property. In the said circumstances, the plaintiff has instituted the suit for mandatory injunction for the demolition of the construction put up by the defendant in the suit property.

3.The defendant, in his written statement, admitted that the suit property is a samudayam property. The defendant also admitted about the suit in OS.No.68/1932, before the District Munsif Court, Kumbakonam, but, however, denied that the suit property was not set apart for the use of the Droupathi Amman Temple. The defendant claims that he had purchased 22 cents from Doraisamy Iyer and Krishnamoorthy Iyer under the sale deeds dated 13.5.1983 and also entered into an agreement to purchase 0.05 cents from one Sundararaman. Thus, the defendant claims that he is in possession of 27 cents of land. The defendant further stated that after purchase, he has applied for sub division of the land and the same was sub divided by the proceedings dated 24.6.1983, passed by the Tahsildar, Kumbakonam. The defendant contends that by virtue of the said sub division, he became entitled to the separate property. The defendant also applied for the licence to the Government of Tamil Nadu for the construction of a rice mill and the authorities have sanctioned permission for the construction of a rice mill in the suit property and he had also constructed a rice mill upto the roof level and could not proceed further, due to the suit and therefore, prayed for the dismissal of the suit.

4.Based upon the above said pleadings, the trial court framed necessary issues and the plaintiff examined himself as PW.1 and also examined one more witness and marked Exs.A1 to A10. The defendant examined himself as DW.1 and also examined 3 more witnesses and marked Exs.B1 to B12. The trial court, after taking into consideration both the oral and documentary evidence, accepted the case of the plaintiff and decreed the suit and the same was confirmed in the appeal preferred by the defendant in AS.No.21/1988,before the Sub Court, Kumbakonam. Aggrieved by the same, the defendant has preferred this appeal.

5.Heard both sides.

6.The suit property is a village samudayam land, that there are 50 pattadars for the suit land and the plaintiff's predecessor was one among them and the suit property among other properties were the subject matter of an earlier suit in OS.No.68/1932, in which a final decree was passed on 29.7.1936, excluding the suit property and that the plaintiff's predecessor Saminatha Padayachi was a party to the said suit, are not in dispute. The plaintiff is also one of the sharers in the suit