Judgment passed by Lower appellate court reversed in second appeal.

1. The aggrieved defendant has filed the appeal against the judgment and decree in A.S.No.36 of 1980 on the file of Additional Sub Court, Tuticorin, dated 22.7.1981 reversing the judgment and decree in O.S.No.228 of 1977, dated 31.10.1979.

2. The case in brief is as follows: The plaintiff filed suit, seeking the relief of declaration and permanent injunction against the defendant. The properties are a house bearing door No.5-A at Palayamkottai Road,Tuticorin with a vacant site with 2 small huts, The plaintiff is in exclusive possession and enjoyment of the properties for more than 19 years and he has been directly paying the house tax and land tax. The properties were measured and survey stones have also been planted on the boundaries by the authorities. He has prescribed his title to the properties by adverse possession. The defendant is interfering with his possession and enjoyment. The defendant filed a suit against the plaintiff in the Panchayat Board, Tuticorin for recovery of arrears o rent and the case is also pending.

3. The defendant resisted the suit, denying the title of the plaintiff. It is false to state that the plaintiff is in possession and enjoyment of the properties for more than 19 years and paying the municipality tax. The defendant has purchased the land in the property along with other properties on 23.8.1961 from one Arumugasamy Nadar, trustee of Subbiah Nadar Dharmanidhi and president of Subbiah Vidyalayam Sangam to whom it belonged by means of registered sale deed for valid consideration. He is in exclusive possession of the property and paying the land tax. The plot was leased to the plaintiff by the defendant for a ground rent of Rs.10 per month with a condition that he should vacate the land as and when required by the defendant. The tenancy is oral. The payment of rent has been duly entered in the note book maintained by the plaintiff and it was also signed by the collecting agent of the defendant. The plaintiff constructed the house in the suit plot and huts without the consent of the defendant and without any permission. The plaintiff was irregular in payment of rent. The defendant filed O.S.No.324 of 1976 in the Village Panchayat Court, Tuticorin for recovery of arrears of rent and the Panchayat Court upheld the defendants claim by an order dated 7.3.1977. The plaintiff never perfected the title by adverse possession.

4. The trial court framed 7 issues and one additional issue and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-5 were marked. On the side of the defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-6 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.36 of 1980 on the file of Sub Court, Tuticorin and the appeal was allowed and the judgment and decree of the trial court were set aside and the suit was decreed with costs throughout. Aggrieved against this, the defendant has come forward with the present appeal.

5. The plaintiff has raised the following substantial question in law:

“In the suit instituted by the respondent for declaration of title to the suit property maintainable in as much as the respondent has failed to plead and prove his case of ownership before the rent court, nor alternatively sought a reference to the civil court for proper adjudication of his title to the suit propertye”

The learned counsel for the appellant contended that the respondent having failed to establish title by purchase or otherwise, is not entitled to plead and prove title by adverse possession. Before the rent court, the respondent stated that the suit property is a Government poromboke. The respondent already suffered a decree before the panchayat court for arrears of rent and he is now estopped from making a fresh claim to the properties in the civil court. The suit is also barred on the principles of res judicata. The tax receipts produced by the plaintiff do not relate to the suit properties.

6. The point