JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 11.04.2011 made in A.S.No.60 of 2009 on the file of the learned Sub Judge, Mannargudi, confirming the judgment and decree dated 26.06.2009 made in O.S.No.80 of 2002 on the file of the learned District Munsif, Thiruthuraipoondi.

1. This appeal is focused as against the judgment and decree dated 11.04.2011 passed in A.S.No.60 of 2009 by the learned Subordinate Judge, Mannargudi, confirming the judgment and decree dated 26.06.2009 passed in O.S.No.80 of 2002 by the learned District Munsif, Thiruthuraipoondi. The suit is for the recovery of possession.

2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

3. The laconic averments made in the plaint, are as follows:

[i] The property in Survey No.999/9 of Keelathondiakadu Village measuring an extent of 1 acre 89 cents, originally belongs to one Sivashankarathachi, wife of Vairappathevar. On 13.03.1966, the said Sivashankarathachi sold an extent of 17 cents in favour of Natesa Pillai, who is the father of the defendant. In the said Sale Deed, 4 boundaries are mentioned as follows:

[ii] On 21.05.1972, the very same Sivashankarathachi sold the remaining extent of acre 72 cents in favour of Murugaiah Pillai, who is the father of the plaintiff. After made purchase, the said Murugaiah Pillai and the plaintiff are in the possession and enjoyment of the said 1 acre 72 cents. In the Sale Deed dated 21.05.1972 also, 4 boundaries are narrated as follows:

[iii] The defendant is having the right and title only in respect to 17 cents. Now, after availing the patta for 0.08.05 ares, he is claiming title for 21 cents. In view of the order passed by the trial Court, the defendant put up a cow shed and also planted 3 coconut trees, in the property claimed by him. When at the time, the defendant attempted to construct a toilet, in the property situated on the West of 17 cents, the plaintiff sent advocate notice dated 15.08.2002 wherein he requested to vacate the encroached area. Hence, it would necessary to grant a decree for recovery of possession. Hence, the suit.

4. The case of the defendant, as averred in the written statement, is as follows:

[i] The allegation levelled against the defendant in the plaint are all false. After made purchase from Sivashankarathachi, the defendant enjoyed the property to an extent of 21 cents. The 4 boundaries mentioned in the Sale Deed executed in favour of the plaintiff’s father, is having incorrect particulars. Apart from the plaintiff, his father Murugaiah Pillai, is having 1 son and 3 daughters and therefore, it is not correct to state that the plaintiff alone enjoyed his property. The coconut trees cultivated by the defendant is in the area of 21 cents. The age of the coconut trees is about 25 years. Further, the defendant enjoyed the suit property by putting a cow shed. After the demise of his father, the defendant alone is in the possession and enjoyment of the disputed land.

[ii] After recognising the possession of the defendant, the government issued patta in his name. The property having by the defendant was sub-divided and afterwards, patta has also been issued. The defendant claims the suit property by means of adverse possession also. The suit has been filed by the plaintiff without impleading all the legal representatives of Murugaiah Pillai. Hence, the suit filed by the plaintiff is liable for dismissal.

5. The averments found in the additional written statement filed by the defendant, are as follows:

[i] In the plaint, the plaintiff did not say how and when the defendant encroached the suit property. He has not mentioned the cause of action. The defendant is in the possession of the suit schedule property for the past 38 years. Hence, he perfected the title by means of adverse possession. The plaintiff has not challenged the patta issued in favour of the defendan