CHINNAPPA PANDITHAR Vs. MASILAMANI UDAYAR

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree, dated 12.7.1994, made in A.S.No,72 of 1992, on the file of the Sub Court, Arni, confirming the judgment and decree, dated 2.9.1992, made in O.S.No,321 of 1985, on the file of the Principal District Munsif Court, Arni.

(2.) THE plaintiff in the suit in O.S.No,321 of 1985, is the appellant in the present second appeal. THE suit, in O.S.No,321 of 1985, had been filed by the plaintiff for a declaration and for possession, in respect of the suit property. THE plaintiff had stated that one Narayanasamy had filed a suit, in O.S.No.143 of 1971, against the first defendant, on the file of the District Munsif Court, Arni, for declaration of his title and for recovery of possession, in respect of the suit property. A decree had been passed in the said suit, on 9.6.1971, based on the compromise entered into between the parties. THE decree passed by the District Munsif Court, Arni, was in favour of the said Narayanasamy, in respect of the suit property. THEreafter, Narayanasamy has been in possession of the said property. However, with regard to the other properties the suit had been dismissed. THE suit property, with an extent of 0.50 cents, is the property found in the second item of the `A' schedule of the suit. Since 0.05 cents of the property consisted of a Well and its adjoining mound, only an extent of 0.45 cents had been declared in favour of Narayanasamy. Further, 1/3rd of the Well and the mound had also been declared in his favour. Thus, Narayanasamy had been in possession and enjoyment of the suit property, since then.

(3.) IN the additional written statement filed in the suit in O.S.No,321 of 1985, it has been stated that it is incorrect to claim, as stated in the plaint, that there was a settlement in the suit in O.S.No.143 of 1971. IN fact, the said suit had been withdrawn, for settling the matter amicably, by way of mediation. Thereafter, Ethiraj Udayar had given a sum of Rs.300/-, as legal expenses, to the first defendant, in the presence of the mediators and he had stated that he would not claim any right in the property. Since then the first defendant has been in enjoyment of the property for over 40 years and he has been paying the kist for the property. Thus, the first defendant is entitled to his rights in the suit property by way of adverse possession.