POUVANAMMAL Vs. PONNAMMAL

JUDGEMENT

(1.) The Second Appeal is filed by the third defendant against the judgment and decree dated 21.10.2002 in A.S.No.12 of 1998 on the file of the Additional Sub-Court, Vridhachalam, modifying the judgment and decree dated 22.10.1997 in O.S.No.62 of 1996 on the file of the District Munsif-cum-Judicial Magistrate's Court, Thittakudi.

(2.) The averments in the plaint are as follows: The suit property is in total extent of 0.57 cents. Northern 28-1/2 cents belong to one Thangavel Kalingarayar of Narasinga Mangalam Village. Southern 28-1/2 cents belong to the plaintiff's and the third defendant's father Sathappa Udayar. The plaintiff purchased the northern portion of 28-1/2 cents on 29.4.1957 from Thangavel Kalingarayar under the registered sale deed and from that date onwards, she is in possession and enjoyment of the same. Out of the Southern 8-1/2 cents of the plaintiff's and the third defendant's father, 8-1/2 cents were used as a thrash floor and the remaining 20 cents were used as cultivable land. Sathappa Udayar executed a Will on 17.5.1965. As per the Will, the plaintiff and the third defendant ought to have enjoyed the property equally. In the Will, it was stated that 9 cents in which R.S.No.147 were marked as 'E' schedule in the Will and it has been used as a "Samadhi land" (cemetery land). Since the property allotted to the plaintiff was more than the property allotted to the third defendant, the plaintiff paid Rs.75/- to the third defendant. From the date of partition, the third defendant was not in possession of Southern 28-1/2 cents. Since the third defendant was not in possession for the past 20 years, her right in the property has been extinguished. Since the defendants 1 and 2 have approached the plaintiff for sale of the property, and since the plaintiff refused, they collided with the third defendant and attempted to interfere with the plaintiff's possession. Hence, the plaintiff has come forward with the suit for declaration of title and injunction, or in the alternative, for recovery of possession. She prayed for a decree.

(3.) The gist and essence of the written statement, filed by the third defendant, adopted by the defendants 1 and 2, are as follows: The plaintiff is in possession of only 27 cents. Remaining 30 cents are in possession of the third defendant from the date of the death of her father on 31.5.1965. So, the third defendant prescribed title by adverse possession. Patta has been changed in the name of the third defendant and her husband. They executed the exchange deed between the first defendant on 4.9.1986. They are in possession and enjoyment of the property. So, the plaintiff is not entitled to any relief.