JUDGMENT :

This second appeal has been directed against the Judgment and decree, 26.07.2012 passed in A.S.No.82 of 2008, by the Subordinate Court, Valliyoor, wherein, the judgment and decree, dated 25.11.2004, passed in O.S.No.183 of 2001 by the Principal District Munsif Court, Valliyoor, are reversed.

2. The first respondent herein as plaintiff, has instituted a suit in O.S.No.183 of 2001, on the file of the trial Court for the relief of declaration and permanent injunction, wherein, the appellants 1 to 4 and the second respondent have been shown as defendants 1 to 5.

3. In the plaint, it is averred that the suit property was purchased by the plaintiff's father on 09.08.1974 and after his demise, the suit property and other properties were allotted to the share of the plaintiff on 17.08.1986, in particular, the land in Survey No.1329 measuring a total extent of 1.77 cents and in that, 3 cents were allotted in common to all the three brothers totalling 6 cents, was allotted for the pathway and out of the remaining 1.68 cents, the middle portion of 56 cents was allotted to the plaintiff and onethird share in the Well and pump-set and the common pathway was also allotted to the plaintiff and this property is shown as plaint first schedule property. The defendants does not have any right over the same and they are the executive committee members of Pathirakali Amman kovil of Salaiputhur and Nambiyanvilai. The Pathirakaliamman Kovil situated South of the suit property and during March, the defendants built a compound wall on the Northern side of the Temple and while doing so, they encroached upon the Southern most portion on the eastern side and built a compound wall running East-West. The defendants encroached an extent of 123 feet East-West Southern most portion on the Eastern side about 8 feet width and 2 feet width on the Western side and built a compound wall and this is shown as the second schedule property. The defendants initially agreed to remove the encroachment in the second schedule property and subsequently refused. Hence, the plaintiff has filed a suit for declaration declaring that the plaint schedule property belongs to the plaintiff and for recovery of possession of the plaint second schedule property. The second schedule property is the part of the first schedule property.

4. In the written statement filed on the side of the defendants, it is averred that the suit is not maintainable either in law or on facts and the same is liable to be dismissed. There is no pathway on the North of the Temple as alleged by the plaintiff. The Temple is 100 years old and the compound wall is aged about 45 years. The defendants have not encroached into the plaintiff's property and built a compound wall. Though the defendants have been added in their representative capacity, their right has not been properly mentioned in the suit. The plaintiff's father did not purchase the plaint schedule property, but on the other hand, the plaintiff's father purchased only 1.77 cents and no pathway was also stated in the partition deed of the year 1986. Assuming that the defendants have encroached into the plaintiff's property, the plaintiff has not added other co-owners in the suit as party and the plaintiff also not stated in the plaint that he has filed the suit on behalf of the other co-owners also and the second schedule property is not a part of the first schedule property. Hence, the suit has to be dismissed.

5. Before the trial Court, on the side of the plaintiff, the plaintiff was examined as P.W.1 and one Subbiah Nadar was examined as P.W.2 and Exs.A.1 to A.3 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and no documents were marked. On the side of the Court, Ex.C.1-Commissioner's report and Ex.C.2-Commissioner's plan were marked.

6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, had dismissed the su