JUDGMENT

The present Second Appeal is directed against the judgment and decree dated 09.07.2015 passed in A.S.No. 147 of 2013 on the file of Learned II Additional District Judge, City Civil Court, Chennai, confirming the Judgement and Decree dated 12.10.2012 passed in O.S. No. 12224 of

2010 on the file of V Assistant Judge, City Civil Court, Chennai. 2.The plaintiff is the appellant in the present second appeal. As against the concurrent judgements and decrees of the Courts below, the plaintiff who has filed the suit in O.S.No.12224 of 2010, has preferred the above appeal.

3.It is the case of the plaintiff that, the suit 'A schedule property'

among other portions originally belong to one Selvam who died intestate in the year 1964 and the property including the 'A' schedule property was a vacant land measuring about east to west 51 ft and north to south 33 ft. The entire extent of this land was enjoyed in common by the legal heirs of late Selvam. After some time the legal heirs of Selvam could not enjoy the property in common and therefore, one of the legal heir by name Mary Margret filed a suit in O.S.No.5323 of 1994 for partition and for separate possession of her 1/4th share in the entire land measuring 51 ft/33ft. In that suit, an Advocate Commissioner was appointed who submitted a report dividing the properties as 'A, B & C' in which one of the legal heirs of Selvam namely Philomina was allotted 'A' Portion, which was upheld by the 1st Appellate Court. In the appeal suit judgment and decree Philomina was allotted 'A' Schedule property measuring about 33 ft on the North to South, on the Western side 26 ft east to West on Southern side and Northern side and 33 ft on the North to South Eastern side. After the demise of the said Philomina, the plaintiffs being her legal heirs became entitled to the 'A' Schedule property. At the time of Commissioner's inspection, it was noted that, the defendants herein encroached 2 ft in the Northern side, which is on the back side of 'A' schedule property. The encroachment made by the defendants was mentioned in the report filed by the Advocate Commissioner in the above suit. While so, the defendants recently attempted to put up construction in the encroached area and the same was objected by the plaintiffs. Hence, the plaintiffs were constrained to file the above suit for the following releifs:

a. directing the defendants to vacate and hand over vacant possession of the land described as ' B' schedule property.

b. directing the defendants to remove any structure put up by them in the encroached area.

c. granting an order of injunction restraining the defendants or any persons claiming any right under them for putting any further constructions.

4.On the other hand, the contention of the defendant is that the entire area in Rajapuranikar street is Government Poramboke vested with the Government of Tamil Nadu and as such without impleading the Government of Tamil Nadu as a party, the suit is bad for non-joinder of proper and necessary parties. The defendants were not parties to the alleged suit in O.S.No.5323 of 94 and therefore, the alleged decree and judgment in the said suit and the report of the Advocate Commissioner are not binding on them. The defendants would further submit that without seeking the relief of declaration of title, the plaintiffs are not entitled for the relief of permanent injunction and mandatory injunction in the suit property. It is further submitted that the 'B' Schedule property is a pathway measuring 2 x15 ft do not belong to the plaintiffs and it is vested with the Government of Tamil Nadu. The plaintiffs failed to prove that they succeeded to the estate of Selvam and further contended that the suit is barred by limitation, since the alleged encroachment was in the year 2002 and the suit was filed only in the year 2010. It is submitted that the defendants have put up constructions only in their property which was also enquired and found by the concerned Police Official