JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Code of Civil Procedure to set aside the judgment and decree in A.S.No.145 of 2007 dated 31.08.2009 passed by the Principal Sub-Court, Virudhachalam, in reversing the judgment and decree in O.S.No414 of 1998 dated 27.10.2006 passed by the Principal District Munsif, Virudhachalam.)

(Heard through video conferencing)

1. This Second Appeal has been preferred against the judgment and decree dated 31.08.2009 passed in A.S.No.145 of 2007 by the learned Principal Sub Judge, Virudhachalam.

2. The appellant was the first defendant, 1st respondent was the plaintiff and the respondents 2 to 5 were the defendants 3 to 6 in the suit.

3. The averments made by the parties in brief:-

The plaintiff has filed the suit for bare injunction. He has claimed that he has purchased the suit property from one Duraisamy Padayachi by virtue of a sale deed dated 04.07.1977. From the date of purchase, he has been in enjoyment of the suit property for storing hay sticks and to dispose the garbage as it lies adjacent to his house on a vacant site and he was in enjoyment of the same without paying any kist. The defendants attempted to purchase the suit properties but failed in their attempts. Enraged over that, they tried to trespass into the property on 31.07.1988 and they started to disturb the peaceful possession and enjoyment of the plaintiff. Hence, the plaintiff has filed the suit for declaration and permanent injunction.

3.1 The first defendant has filed his written statement by alleging that the original owner Duraisamy Padayachi did not execute any sale deed in respect of his property. He alone was in enjoyment of his suit property till his death and after his death, his wife Kullammal has inherited the same and she executed a Will in favour of the first defendant on 15.10.1980 by virtue of a registered Will. After the death of Kullammal, the Will came into effect and subsequently, the revenue records got mutated in the name of the first and second defendants. They inherited the suit property and took possession of the property and are in enjoyment of the same.

4. Basing on the pleadings, the trial Court has framed the following issues:-

“TAMIL”

5. During the course of the trial, on the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3 and Exs.A1 to A4 were marked. On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and Exs.B1 to B8 were marked. One document was marked through a witness as Ex.X1. The Commissioner’s report and plan was marked as Exs.C1 & C2.

6. After the conclusion of the trial, the learned trial Judge has decreed the suit only to the extent of the portion shown between X & Y of the Commissioner’s plan on the east-west and 55 ft on the north-south. Aggrieved over that, the plaintiff has preferred the First Appeal and the First Appeal was allowed. So the appellant/1st defendant has filed this Second Appeal challenging the judgment and decree of the learned First Appellate Judge and this Second Appeal has been admitted on the following substantial questions of law 1 and 2:-

1. Whether the First Appellate Court is right in decreeing the suit entirely when there is no sufficient proof for same by the plaintiff?

2. Whether the suit is bad for non-joinder of necessary party?

7. Heard Mr.V.Raghavachari, learned counsel for the appellant.

8. The learned counsel for the appellant submitted that the sole legal heir of the original owner Duraisamy Padayachi has executed a Will dated 15.10.1980 in favour of the appellant and his brother; after his lifetime, the Will came into effect and the appellant and his brother became entitled to the property; the suit property being grama natham, thoraya patta was granted in the name of Duraisamy Padayachi; the plaintiff without impleading the revenue authorities has filed this suit and hence, it is bad for non-joinder of necessary parties; the survey number in the plaintiff’s sale deed dated 04.07.1977 is