JUDGMENT

This Civil Miscellaneous Appeal has been filed against the Judgment and decree dated 26.11.2010 made by the Court of the learned Subordinate Judge, (Kuzhithurai Camp) in A.S.No.4 of 2004 and Cross Appeal in A.S.Nos. 4 and 57 of 2004.

2. For the sake of convenience, the parties are referred herein as per their rank before the Trial Court.

3. The brief facts of the case are as follows:

(i) The A.S.No.4 of 2004 has been preferred by the 1st defendant and A.S.No.57 of 2004 has been preferred by the 2nd and 3rd defendants and Cross Appeal has been preferred by the defendants 4 to 9 against the Judgment and Decree passed by the Principal District Munsif Court, Kuzhithurai in O.S.No.273 of 1991.

(ii) The plaint A schedule property is old Survey Number 1357 A of Nalloor Village. It comprises a total extent of 49 cents. The name of the property is Kottayathuvilai Purayidom and the same corresponds to the Resurvey numbers D1/56, D1/57, D1/58, D1/59 and D1/60. The plaint B schedule property is comprised in an area of 9 cents in the eastern side of old survey No.1357 A co-relating to resurvey No.D1/60 of Nalloor Village. The first plaintiff is entitled to the southern 18 ¼ cents by purchase under the sale deed No. 1493/1972 dated 15.05.1972 executed by Karunakaran and others. The second plaintiff is entitled to the next 8 ½ cents in the north vide sale deed No.2234 / 1121/ 1945 M.E and No.940/1964 and the third plaintiff is entitled to the southern 5 7/8 cents under sale deed Nos. 4399/1862 and 938/1964 respectively in the A schedule property. The balance area in the northern portion of old survey No.1357 A of Nalloor Village was purchased by one Ponnu. The plaintiffs have put up strong masonry compound walls along the eastern boundary of the plaint A schedule property after obtaining the permission and approval of the blue prints by the Kuzhithurai Municipality in the year 1972. The house of the plaintiffs situated within the plaint A schedule property was constructed before 20-30 years. The latrines, cattle sheds, bath room and other structures are also old and they are situated in the plaint B schedule property. The 1st defendant is the Kuzhithurai Municipality and the 1st defendant has accepted the title and possession of the plaintiffs over the plaint B schedule property by approving and giving permission to put up houses and other structures. On 13.03.1991, the 1st defendant sent a notice to the plaintiffs calling upon them to remove the encroachments from the plaint B schedule property. On enquiry, the plaintiffs came to know that as per the recent resurvey and settlement, a new sub division in resurvey No.D1/60 has been carved as public pathway within plaint A schedule property. The State of Tamil Nadu is not entitled to carve a poramboke sub division D1/60 within plaint A schedule property. Such a survey and settlement is against the documents of title, possession and lay of the property.

(iii) In such circumstances, the plaintiffs are entitled to get the title and possession declared over the plaint B schedule property which is a part of plaint A schedule property. The plaintiffs are also entitled to get an injunction restraining the defendants from causing the removal of the structure in the plaint B schedule property and from disturbing the plaintiffs possession over the same. Hence, the plaintiffs issued a legal notice under Section 80 CPC. On expiry of the statutory period plaintiffs reserved their right to implead the State of Tamil Nadu as an additional defendant in the Suit. Hence, this Suit came to be filed seeking to declare the plaintiffs title and possession over the B schedule property and restraining defendants from causing the removal of the structures put up by the plaintiffs in plaint B schedule property.

4. The defence of the 1st defendant:

(i) The contentions put forth by the plaintiffs are not fully correct.

The actual area of old survey No.1357 A was less than the settlement area. The area comprised in T.S.N