The main legal point established in the judgment is that the plaintiff proved title and right to recover possession, while the defendant failed to establish adverse possession under the test of 'Nec vi, Nec clan, Nec precario'.

JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 31.10.2008 in A.S.No.38 of 2008 on the file of the Court of the Principal Subordinate Judge, Cuddalore confirming the judgment and decree dated 31.07.208 in O.S.No.57 of 2005 on the file of the Principal District Munsif, Cuddalore.)

(The case has been heard through video conference)

1. This Second Appeal is against the concurrent finding of the Courts below, filed by the defendant in the suit.

2. Gist of the plaint:

The suit is filed for declaration and permanent injunction or in alternate recovery of possession and mandatory injunction in respect of the property morefully described under ‘B’ schedule of the plaint.

3. According to the plaintiff, his father Natesa Mudaliar purchased 26 feet North-South x 180 feet East-West land under sale deed dated 01.03.1941 and another piece of land adjacent measuring 28 feet North-South x 160 feet East-West under sale deed dated 19.09.1943. Though the North-South linear measurement is shown as 160 feet in the sale deed, it is in fact 180 feet in the field. The said property is the ‘A’ schedule property in the plaint. Equal measurement of North-South 56 feet x East-West 180 feet on the South of ‘A’ schedule property is the ancestral property of the plaintiff’s father. The entire extent of property was converted into mango groove, in which, the defendant was employed as a watchman for a few years. The defendant was permitted to stay in the small thatched hut in the portion of the ancestral property.

4. Under the Registered Will dated 31.08.1986 executed by the plaintiff’s father, the ‘A’ schedule property given to the plaintiff and the ancestral property on the south given to his brother Rajaguru. The Will came into effect from 21.12.1987 on the death of the plaintiff’s father. Due to poor yield, the mango groove was destroyed and the entire land is now vacant. However, out of gratis the defendant was permitted to reside in the hut. When the plaintiff wanted to put up construction in his ‘A’ schedule property, the defendant is causing obstruction, with an intention to extract money and make unjust enrichment.

5. In the middle of December 2004, the defendant attempted to put up a permanent structure over an extent of 100 sq.ft morefully described under ‘B’ schedule of the plaint. He has put up the construction upto basement level in spite of objection. When complaint given to police on 09.01.2005, the defendant agreed to remove the structure. But, he failed to remove as promised. Hence, suit for declaration and injunction or in alternate, mandatory injunction and recovery of possession.

6. Gist of the written statement:

The description of ‘A’ and ‘B’ schedule property is wrong and misleading. The defendant-s father, in fact, had encroached upon the suit property to an extent of East-West 130 feet and North-South 102 feet. In the encroached land, he and his family are residing since 1965. He is in exclusive possession of the property. His father put up a thatched house and raised trees. His marriage held in the property. In the year 1993, the father of the defendant died. In the year 1995, he put up a pacca kitchen room in brick. He is enjoying the usufructs of the trees without any interference. For more than the statutory period continuously with the knowledge of the plaintiff, he is enjoying the property without any interruption. The defendant had perfected the title by adverse possession, hostile to the plaintiff and his brother. The defendant is enjoying the usufructs of the mango trees planted by his father. There are also bamboo bushes, 3 coconut trees, two tamarind trees and banana garden with guava trees and neem trees.

7. When the plaintiff and his family members tried to drive away the defendant by force and used filthy language, he gave complaint to the police. To counter blast that complaint, the plaintiff gave a false complaint and with his influence with po