- (1.) AGGRIEVED by the judgment and decree dated 1. 9. 1993 passed in A. S. No. 42 of 1990 on the file of the District Court, The Nilgiris reversing the judgment and decree dated 21. 6. 1990 made in O. S. No. 6 of 1986 on the file of the District Munsif Court, Gudalur, the defendants have come forward with this second appeal.
(2.) THE averments made in the plaint are as follows: a. The plaintiff is the absolute owner of the 'a' schedule property. As per the order of the Settlement Thasildar No. II (Enquiry) Gudalur, the 'a' chedule property has been treated as Church Poramboke under Section 11 (d) f the Giudalur Janmam Estates Abolition and Conversion into Ryotwari Act No. 24of 1969. The Church is the 'a' schedule property constructed several years ago. In January 1981, the defendant, who has no title and right over the said property, trespassed into the area and put up construction. Therefore, the plaintiff issued a notice dated 2. 12. 1981 requesting the panchayat not to give any licence to the defendant for construction. On verification with the plan, which was received from the Assistant Director of Survey, the plaintiff found that the defendant encroached the 'a' schedule property. The defendant has encroached to an extent of 10 cents, which is described as 'b' schedule property. Since the defendant dug the earth for further construction in the encroached portion, some cracks were developed in the walls of the Church. The plaintiff is entitled for the 'b' schedule property and the defendant is bound to deliver the vacant possession of the 'b' schedule property to the plaintiff. Hence the suit for mandatory injunction and permanent injunction.
(3.) THE averments made in the written statement are as follows: a. Denying the averments made in the plaint, it is stated that though the Special Tahsildar No. II held in his order S. R. No. 690/78 dated 18. 10. 1978 that R. S. No. 28/1a as Poromboke, the defendant disputes the same as a unilateral order. The defendant was in possession and enjoyment of 5 acres of land and two houses in Survey No. 28/1a of Gudalur Village. He had filed a suit in O. S. No. 88 of 1980 before this Court against Government for attempted dispossession from a larger extent including the suit schedule property. The report submitted by the Commission in that suit will bear out the falsity of the plaintiffs stand. The defendant and his father came into possession of the land as early as 1960. The falsity of the claim of the plaintiff is evident from the fact that the plaintiff did not furnish correct boundary for 'a' schedule property. The defendant is entitled for assignment of patta for an extent of 47 cents of land, which is in his possession and enjoyment from the time of his father. The defendant is awaiting the verdict from the highest Settlement Authority in pursuance of a petition filed by him under Section 5 (2) of the Act 24 of 1969 and therefore, the suit may be dismissed as premature. ;