JUDGMENT :

(Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 09.12.2009 made in A.S.No.70 of 2008 on the file of the learned Principal Subordinate Judge, Gopichettipalayam, confirming the judgment and decree dated 24.06.2008 made in O.S.No.13 of 2004 on the file of the learned District Munsif, Sathyamangalam.)

1. Aggrieved over the concurrent findings, made in A.S.No.70 of 2008 dated 09.12.2009 on the file of the learned Principal Subordinate Judge, Gopichettipalayam, and in O.S.No.13 of 2004 dated 24.06.2008, on the file of the learned District Munsif, Sathyamangalam, the defendant in the above referred suit, preferred the second appeal praying to set aside the judgment and decree passed by the Courts below.

2. The respondent filed a suit as against the appellant in O.S.No.13 of 2004 on the file of the learned District Munsif, Sathyamangalam, seeking the relief of permanent injunction restraining the appellant from interfering with his physical possession and enjoyment of the suit schedule property.

3. By judgment and decree dated 24.06.2008, the learned District Munsif, Sathyamangalam, allowed the suit in entirety and granted the decree for permanent injunction. In the appeal preferred by the defendant in A.S.No.70 of 2008, the learned Subordinate Judge, Gopichettipalayam, by judgment and decree dated 09.12.2009, confirmed the findings arrived at by the learned District Munsif, Sathyamangalam and dismissed the appeal. Feeling aggrieved by the same, the defendant is before this Court with the present second appeal.

4. For the sake of convenience hereinafter the appellant is called as ‘defendant’ and the respondent is called as ‘plaintiff’.

5. The laconic averments made in the amended plaint, are as follows:

Vide sale deed dated 10.09.1973, the plaintiff purchased two vacant house sites from one Kaliyanna Gounder. After made purchase, he constructed his house in one house site and left the other house site vacant, without making any development. The defendant is residing on the south of the plaintiff’s property. Since a portion of the plaintiff’s property is a vacant site, the defendant asked permission from the plaintiff to dump the wooden logs and the same was refused by the plaintiff. The plaintiff was residing in Chinnaparusapalayam village, which is situated 2 kms away from the property. By utilising the opportunity as the plaintiff was not residing in the suit property, the defendant attempted to use the same. The attempt made by the defendant in the year 2003 was managed by the plaintiff. In order to avoid further consequences, the plaintiff in his vacant site, had put the haystack and also planted some vegetable plants. Even after the same, the defendant attempted to encroach the plaintiff’s property and hence, the suit.

6. The case of the defendant, as averred in the written statement, is as follows:

The alleged sale deed dated 10.09.1973 is a sham and nominal document and the same was not acted upon. In the plaint, in description of property, the plaintiff has not stated about the survey numbers wherein the suit schedule property was situated. The suit property is a vacant site comprising survey No.408/9. For the past 50 years, the defendant alone enjoyed the suit schedule property. Hence, he perfected the title through adverse possession. After knowing the same, the plaintiff purchased the suit schedule property. The suit schedule property is a government porambokke. Therefore, it is quite impossible for the plaintiff to purchase the suit land. The suit is bad for non-joinder of necessary parties. Without asking declaratory relief, praying for permanent injunction cannot be maintained. Hence, the suit filed by the plaintiff is liable for dismissal.

7. Based on the above pleadings, the learned District Munsif, Sathyamangalam, framed necessary issues and tried the suit. Before the trial Court, the plaintiff Rangasamy examined himself as PW1.