E. Padmanabhan, J. - (1.) THE first defendant in O.S.No.104 of 1988 on the file of the Sub Court, Ami who had lost before the first appellate court is the appellant in this Second Appeal. This Second Appeal is directed against the judgment and decree of the learned District Judge, North Arcot dated 30.11.1992 made in A.S.No.36 of 1992 in reversing the judgment and decree of the learned Subordinate Judge of Ami dated 31.3.1992 made in O.S.No.104 of 1988.
(2.) FOR convenience the parties shall be referred as arrayed before the trial court. At the time of admission the following substantial question of law was framed by this Court.When the plaintiff as P.W.1 has admitted thus(Editor: The text of the vernacular matter has not been reproduced.required.)Whether the lower appellate court is right in having decreed the suit?. According to the plaintiff, the suit property originally belonged to Thillai Natarajan, husband of the first defendant, that the suit property was sold in court auction, that one Ismail was the court auction purchaser, that the said Ismail conveyed the same to Jayapal, that from Jayapal, the plaintiff purchased the suit property as vacant site, that adjacent to the suit vacant site there is a road and road poromboke, that the defendant put up a shed adjacent to plaintiffs vacant site measuring 36 feet east west and 30 feet north south, that the said shed obstructs the plaintiffs access to the public street, that the encroachment by the first defendant has to be removed, that the plaintiff moved the second defendant municipality to remove the encroachment, which is obstructing the plaintiff, and that the plaintiff had come before the court to remove the obstruction against the defendants. The first defendant filed a written statement contending that even before 15 years prior to the purchase by the plaintiff, the defendant had put up the shed and in enjoyment and the same was assigned Door No.136-A, that what was purchased being door No.137, that the plaintiff has no right in respect of the portion over which the first defendant had put up shed, that the space over which the first defendant had put up a shed is a road poromboke, that without impleading the Government no suit is maintainable against the defendants and therefore, the suit is bad for non-joinder of necessary parties. Subsequently, the second defendant was impleaded and a separate written statement was filed. According to the second defendant, the suit property is a revenue poromboke and not highway road poromboke that second defendant has no control or connection with the suit property, that by the first defendant's shed no prejudice has been caused to the plaintiff and so the second defendant had been impleaded unnecessarily.
(3.) THE trial court framed six issues. Before the trial court, the plaintiff marked Exs.A-1 to A-31, while the defendants marked Exs.B-1 to B-33. THE plaintiff examined P.Ws.1 to 4, while the first defendant examined D.Ws.1 to 3. On a consideration of oral and documentary evidence, the trial court found that the first defendant had put up a shed on poromboke, that even before the purchase by the plaintiff and his predecessors the shed existed, that with the knowledge of the shed, the plaintiff had purchased the property, that the plaintiff cannot raise any issue with respect to the poromboke in the occupation of the first defendant and that the present suit has been filed by the plaintiff with the object of removing the occupation of the first defendant and encroaching the same. In the light of the said findings, the trial court dismissed the suit. Being aggrieved, the plaintiff preferred A.S.No.36 of 1992 on the file of the District Court, North Arcot. The first appellate court framed the following two points for consideration. 1. Whether the plaintiff is aggrieved or object to the first defendant putting up shed on the poromboke land?. 2. Whether the plaintiff is entitled to any relief?. ;