JUDGMENT :

PRAYER :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 05.09.2011 made in A.S.No.67 of 2011 on the file of Sub Court, Devakottai, confirming the judgment and decree dated 08.12.2010 made in O.S.No.38 of 2009 on the file of Principal District Munsif Court, Karaikudi.

This appeal is filed against the order in A.S.No.67 of 2011 on the file of the Subordinate Court, Devakottai, confirming the judgment and decree in O.S.No.38 of 2009 on the file of the learned Principal District Munsif, Karaikudi. The appellant is the defendant in the original suit. The respondent is the plaintiff in the original suit. The respondent herein filed a suit for permanent injunction.

2.A brief substance of the plaint is as follows:

The suit property is situated in Kazhanivasal village. The plaintiff is having electricity connection and is paying house tax. The plaintiff is in possession of the property from the year 1993, by constructing a small thatched hut and he is using the vacant portion for cultivating vegetables. Two years prior to the filing of the plaint, the plaintiff removed the hut and constructed a house therein and the plaintiff is residing in the suit property. The defendant is having no right or title. On 19.10.2008, the defendant threatened the plaintiff to dispossess him from the property.

3. A brief substance of the written statement filed by the defendant is as follows:

(i) The plaintiff was not in possession of the suit property for the past 15 years. The defendant purchased the suit property from one Sangarapandiyan for valuable consideration. A natham patta in S.No.133/10 was issued in favour of the predecessor of the defendant. The defendant is in effective possession of the suit property for more than the statutory period. The defendant purchased some other house plots near the suit property and subsequently he sold them to a third person. Taking advantage of the fact that the defendant is residing 50 kms away from the property, during the month of April, 2008, the plaintiff trespassed into the suit property and constructed a hut. The defendant filed a complaint to the authorities. On 25.06.2009, the Revenue Divisional Officer sent a memorandum to the Tahsildar, Karaikudi to remove the encroachment in the suit property. After knowing this, the plaintiff has come forward with the suit. The plaintiff constructed the hut in the suit property in the year 2008 which is an illegal activity and the suit has to be dismissed.

(ii) In the counter claim the defendant claimed that he is the absolute owner of the suit property and sought removal of the super structure built by the plaintiff by encroaching the suit property, as per the time limit fixed by this Court and to hand over the vacant possession of the suit property to the defendant, in default, he sought the Court below to pass a decree of recovery of possession and for cost.

4. In the reply to the counter claim filed by the defendant, it is stated that the averments in the written statement are false. It is wrong to state that an assignment patta was granted to the vendor of the defendant. The defendant is not entitled to declaration and recovery of possession. The counter claim is barred by limitation.

5. On the above pleadings, the trial Court framed the following issues:

i) whether the plaintiff is entitled for permanent injunction as prayed for?

ii) whether the defendant is entitled for relief of declaration and title over the suit property as prayed in the counter claim.

iii) whether the defendant is entitled for mandatory injunction and recovery of possession in the suit property as claimed in the counter claim.

iv) whether the counter claim is barred by limitation?

v) what are the other reliefs the plaintiff and defendants are entitled for?

Three witnesses were examined. Five documents were marked on the side of the plaintiff. Two witnesses were examined and two documents were marked on the side of th