JUDGMENT :

G. Jayachandran, J.

1. This Second Appeal is preferred by the defendants in O.S. No. 578 of 1998. The suit has been laid against them for permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit property as a dominant owner.

2. According to the plaintiff, the vacant site measuring 14 yards north-south and 12 yards east-west was purchased by his father Naganaicker on 24.10.1945 from one Kalanaicker. Since then, the said property was in possession and enjoyment of his father. After the demise of his father, the plaintiff has got the possession and enjoyment of the suit property. He has constructed a thatched house in the vacant site, two years before filing of the suit. On 14.08.1998, the defendants who are brothers living next to the plaintiff attempted to encroach upon the suit land and engulf the suit property.

3. The said suit was resisted by the appellants herein by filing written statement denying the alleged encroachment and plaintiff claiming title over the suit property through the sale deed dated 24.10.1945. The defendants specifically contented that the plaint schedule does not specify the actual extent and description. The land being classified as natham, the Government has granted patta to all the inhabitants of the village including the plaintiff and the defendants. Suppressing the said facts, based on her documents alleged to have been executed in the year 1945, which does not specify the extent of the property, the suit has been filed.

4. In the written statement, the defendants have specifically submitted that they are in possession and enjoyment of specific extent of the property, for which they have been granted patta by the Government in old SF No. 132/2 which corresponds to new SF No. 1872/17. The plaintiff attempted to encroach the vacant site belongs to the defendants situated on the eastern side marked as "E", in the Advocate Commissioners' report and also the vacant site situated on the southern side of the property. The villagers objected to the attempt of encroachment. The plaintiff agreed before the panchayathar that he will not interfere or encroach any vacant site which does not belong to him. However, he has filed the present suit with fallacious averments, as if the defendant attempts to encroach upon the vacant site.

5. To note down the physical features of the suit property, the defendant has taken out an application to appoint an Advocate Commissioner and pursuant to the order of Court, the Advocate Commissioner has inspected the suit property and has filed report and sketch.

6. The defendant has specifically pleaded that the plaintiff can claim possession and enjoyment only in respect of the house property and the vacant site available on the northern and western side, as per the patta. He cannot claim any title, right or possession for the suit property based on the sale deed executed in the name of his father long ago without proper description or identity of the property.

7. The trial Court has framed the following issued based on the pleadings.

(i). Whether the plaintiff is entitled for permanent injunction as prayed?

(ii) What the relief sought for?

8. To prove the case, the plaintiff has examined himself as P.W. 1 and one Boomanaicker as P.W. 2. Ex. A.1 and Ex. A.2 were marked, they are copy of the sale deed executed by Kalanaicken in favour of Naganaicker the father of the plaintiff and the house tax receipts issued by Chinnathambipalayam Panchayat for the assessment year 1989-1999 for Door No. 49A-1, in the name of the Naganaicker/plaintiff. The defendants examined as D.W. 1 and two exhibits were marked. Ex. A.1, the patta issued to him in respect of new survey No. 1872/17 along with Form 1 and 3 and Ex. B.2, house tax receipts for Door No. 35-B for the assessment year 1995-1996, 1996-1997, 1997-1998 and 1998-1999. Besides these documents filed by the respective parties, the Advocate Commissioner's report and plan are mark