JUDGMENT :

Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of the Civil Procedure Code, to set aside the order of remand, made in A.S.No.23 of 2016, dated 21.11.2020, on the file of the learned Subordinate Judge, Pattukkottai, Thanjavur District, by which, set aside the Judgment and Dereetal order made in O.S.No.181 of 2010, dated 22.06.2016, on the file of the learned District Munsif Court, Pattukkottai, Thanjavur District and restore the Decree and Judgment of the Trial Court.

1. This Civil Miscellaneous Appeal has been filed to set aside the order of remand, in A.S.No.23 of 2016, dated 21.11.2020, on the file of the learned Subordinate Judge, Pattukkottai, Thanjavur District, by which, set aside the Judgment and Decreetal order made in O.S.No.181 of 2010, dated 22.06.2016, on the file of the learned District Munsif Court, Pattukkottai, Thanjavur District and restore the same.

2. The respondent/plaintiff has filed a suit in O.S.No.181 of 2010 on the file of the learned District Munsif, Pattukkottai, seeking declaration and for mandatory injunction and directing the appellant/defendant herein to hand over the vacant possession of the suit property after removing the constructions which were made by him by encroaching the suit property. The said suit was dismissed on 22.06.2016. Against the dismissal order, the respondent herein/plaintiff has preferred an appeal in A.S.No.23 of 2016 on the file of the learned Subordinate Court, Pattukkottai. The said appeal was remanded back to the trial Court for fresh consideration. Against the said order, the appellant/defendant is before this Court.

3. Heard on either side. Perused the material documents available on record.

4. The respondent herein/appellant/plaintiff has filed a suit in O.S.No.81 of 2010 on the file of the learned District munsif, Pattukottai for declaration and mandatory injunction and recovery of possession. The suit property is located in Athiramapattinam village in Old.S.No.4.330 and new S.No.324/7 and 324/8.

5(i).The case of the respondent herein/plaintiff is that the suit item no.1 property is measuring about East-West 19 feet and North-South 71 feet namaicut land and a property with PB No.28 & 29. The property situated on the Western side of 1st item of property with a measurement of a East-West 10 feet and North-South 24 feet manaicut land is the suit 2nd item of property and the property situated on the Southern side of 2nd item and Western side of 1st item with a measurement of East-West 6 ½ feet and North-South 20 feet is the 3rd item of property. The property situated on the Western side of suit property namely Natham Poramboke land having an extent of 2 cents was in the enjoyment of Hajara ammal. The said Hajara ammal bequeathed the above 2 cents natham land and some other properties to Sabura ammal by way of Inam Settlement deed, dated 31.01.1960 and the said properties were enjoyed by Sabura ammal. On the Western side of the above said 2 cents natham land, the property owned and enjoyed by Dawood Sulaika ammal is situated. The respondent/plaintiff is the daughter of above said Sabura ammal. The said Sabura ammal had executed an Hibbath deed on 03.09.1979, thereby, bequeathed the properties covered in Settlement deed, dated 31.01.1960 to and in favour of her daughter, who is the respondent/plaintiff herein. Since the 2 cents land situated on the Western side of the settlement properties dated 31.01.1960 is classified as natham poramboke it was not shown in the Hibbatha deed, dated 03.09.1979.

5(ii). The further case of the respondent herein/plaintiff is that the property shown in the Inam settlement deed, dated 31.01.1960 comprised in survey No.4/1 was sub divided into two parts. The property situated on the Eastern side is sub divided as survey No.4/331 and the property situated on the Western side along with 2 cents natham land was sub divided as survey no.4/330 and Patta was issued in the name of Respondent/Plaintiff. During UDR survey the proper