JUDGMENT

The concurrent Judgments and decrees passed in O.S.No.88 of 2006 by the First Additional District Munsif Court, Tirunelveli and in A.S.No.86 of 2010 by the Additional Subordinate Court, Tirunelveli, are being challenged in the present second appeal.

2. The respondent / plaintiff has instituted a suit in O.S.No.88 of 2006 on the file of the trial Court for the relief of permanent injunction, wherein the present appellants have been shown as defendants 1 to 3.

3. It is the case of the respondent / plaintiff that the suit property originally belonged to one T.K.Kailasa Sundara Mudaliar and T.K.Thirumalaiappa Mudaliar. The said T.K.Thirumalaiappa Mudaliar filed a suit in O.S.No.61 of 1947 before the Sub-Court, Tirunelveli, for partition. The said suit ended in a compromise in I.A.No.445 of 1947 and according to the said compromise, 15-1/2 cents was allotted to the father of the plaintiff, namely, T.K.Thirumalaiappa Mudaliar and he was in possession and enjoyment of the same. The said T.K.Kailasa Sundara Mudaliar died in the year 1962, leaving behind the first defendant and his other sons. The brothers of the plaintiff filed a suit in O.S.No.187 of 2000 before the Principal Sub-Court, Tirunelveli, against their father T.K.Thirumalaiappa Mudaliar and the plaintiff for partition. The said suit also ended in a compromise and the suit property in Survey No.340/2C measuring an extent of 15-1/2 cents was allotted to the plaintiff and a final decree was also passed. The plaintiff has also applied for separate patta in his name and a patta was also issued in his name. The District Collector, Tirunelveli, sent a notice to the plaintiff regarding acquisition of 7-3/4 cents for the purpose of underground drainage. The plaintiff also executed a sale deed to an extent of 7-3/4 cents in favour of the Tirunelveli Corporation and he was also enjoying remaining 7-3/4 cents. Since the defendants are intimidating the plaintiff from enjoying the suit property, the plaintiff has instituted the suit.

4. In the written statement filed on the side of the appellants /

defendants, it is averred that the suit schedule property was part of the property in O.S.No.61 of 1947 and there was a division in Survey No.340/2 in equal halves. The defendants are not aware of the allotment of 15-1/2 cents as per the said decree in O.S.No.187 of 2000. Hence, there are other shares and the plaintiff cannot quantify it as 15-1/2 cents. The plaintiff has parted the share in Survey No.340/2 in favour of the Corporation and the Tirunelveli City Municipal Corporation has also made construction. Hence, the Tirunelveli City Municipal Corporation is a proper and necessary party and the suit is liable to be dismissed for non-joinder of necessary parties and there is absolutely no cause of action for instituting the suit.

5. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendants, the first defendant was examined as D.W.1 and Exs.B.1 and B.2 were marked.

7. On the basis of the rival pleadings on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence, has decreed the suit in favour of the respondent / plaintiff.

8. Aggrieved by the Judgment and decree passed by the trial Court, the defendants as appellants, had filed an Appeal Suit in A.S.No.86 of 2010. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and confirmed the Judgment and decree passed by the trial Court. Challenging the said concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendants as appellants.

9. Heard the learned counsel for the appellants and the learned counsel for the respondent and also perused the records carefully.

10. The learned counsel appearing for the appellants / defendants would submit