The court upheld the plaintiff's claim of title to the suit property based on the defendant's admission and the failure of the trial court to adhere to the direction of the appellate court.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the judgment and decree dated 18.12.2007 made in A.S. No.11/2005 on the file of the Sub-Court, Aarani, reversing the judgment and decree dated 07.12.2004 made in O.S. No.167 of 1988 on the file of the District Munsif Court, Polur.

1. Challenge in this second appeal is made to the judgment and decree dated 18.12.2007 passed in A.S. No.11/2005 on the file of the Subordinate Court, Aarani, reversing the judgment and decree dated 07.12.2004 passed in O.S. No.167 of 1988 on the file of the District Munsif Court, Polur.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The defendant in OS.No.167 of 1988 is the appellant in the Second Appeal.

4. Suit for declaration, possession, permanent injunction and mandatory injunction.

5. The case of the plaintiff, in brief, is that the suit property originally belonged to the defendant and the defendant conveyed the same to one Manickam by way of the registered sale deed dated 20.01.1970 and pursuant to the same, Manickam had been in the exclusive possession and enjoyment of the suit property and subsequently Manickam, out of love and affection, settled the suit property in favour of his daughter Chandrammal by way of the registered settlement deed dated 30.06.1980, which was duly accepted by Chandrammal, the settllee, and pursuant to the same enjoyed the suit property in her own right and the plaintiff purchased the suit property from Chandrammal under the registered sale deed dated 09.10.1987 and following the same, the plaintiff is in the exclusive possession and enjoyment of the suit property by paying the kists, etc., and the plaintiff and his predecessors in title have been openly and continuously enjoying the suit property uninterruptedly for more than a statutory period and also perfected their right to the same by way of the adverse possession and while so, the defendant, all of a sudden, attempted to tress-pass into the suit property with his men and also despite the protest put forth by the plaintiff, tress-passed in the suit property and put up a basement unlawfully in the suit property and hence, according to the plaintiff, he has been necessitated to institute the suit against the defendant for appropriate reliefs.

6. The defendant resisted the plaintiff's suit contending that the plaintiff has laid the suit under a wrong impression that the defendant is constructing a building in the portion already sold by him in the year 1970. The defendant is not constructing any building in the portion belonging to the plaintiff. In the sale deed dated 20.01.1970 it has been clearly averred by the defendant that he is alienating only 6 cents within the specific boundaries out of 30 cents in the suit survey number and the property alienated is lying to the north of the property retained by the defendant and the commissioners appointed in the matter have also made clear that the building in question is not in the portion alienated by the defendant to the plaintiff's predecessors in title, but, it is only in the portion belonging to the defendant and therefore, the alleged tress-pass on the part of the defendant, as claimed by the plaintiff, is a falsehood. The plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed.

7. In support of the plaintiff's case P.Ws.1 to 3 were examined and Exs.A1 to A10 were marked. On the side of the defendant D.W.1 was examined and Ex.B1 was marked. C.Ws.1 and 2 were examined and Exs.C1 to C5 were marked.

8. On a consideration of the oral and documentary evidence adduced in the matter and the submissions put forth by the respective parties, the trial court was pleased to dismiss the plaintiff's suit and on appeal by the plaintiff, the first appellate court, on a consideration of the materials placed on record and the submission put forth by the respective parties, was pleased to set aside the judgment and decree