NADIGAR SUBRAMANIAN (DECEASED) Vs. S. VIJAYAN

JUDGEMENT

(1.) The second defendant in the suit is the appellant in this second appeal. Pending appeal, the appellant died and therefore, his legal representatives were brought on record as appellants 2 to 5.

(2.) Initially, the suit was laid by one Subramanian and on his demise, his legal representatives were brought on record and they are the respondents 1 to 5 herein. The suit was filed for the relief of declaration, permanent injunction and recovery of possession. According to the plaintiffs, the suit property is a vacant site which was purchased by Subramanian/plaintiff on 13/7/1979 from its owner Subramanya Udayar. While purchasing the property, a portion of the property was occupied by the third defendant - Kasi Mudaliar, Rajagopal Udayar and one Adhilakshmi. The plaintiff requested them to vacate and hand over the possession to him. He also issued a notice to that effect, but did not proceed further to recover the possession. Later, Adhilakshmi died. After the demise of Adhilakshmi, her relative, Sarojammal is occupying the hut and enjoying the same. The third defendant Kasi Mudaliar is not causing any disturbance to the peaceful possession and enjoyment of the plaintiff's property. Whereas, the first defendant and the second defendant are trying to put up permanent superstructure in the suit property, by removing the thatched hut. Therefore, the plaintiff seeks the relief of declaration in respect of a portion marked as 'HJKCDEFGH' and permanent injunction in respect of a portion marked as 'ABCKJHGA' in the plan annexed to the plaint.

(3.) In the written statement filed by the second defendant and adopted by the first defendant, the averments made in the plaint were denied. According to the defendants 1 and 2, the disputed portion of the land and other properties were initially enjoyed by one Adhilakshmi for several years. She had put up a thatched hut, planted drumstick tree and enjoyed the property for more than 40 years. She was in possession and enjoyment of the property of a larger extent of the property including the suit property for more than 40 years, ousting the right of others including the plaintiff. Adhilakshmi, never entered into rental agreement with anybody. The disputed portion of the property is on the highways road margin, classified as 'Government poromboke'. Adhilakshmi sold the suit schedule property to one Sarojammal and handed over the possession to Sarojammal. In turn, Sarojammal sold the property to the second defendant. Thus, the second defendant has got the possession of the property and enjoying the same. He has removed the compound wall put up by Adhilakshmi and using the property as cattle shelter. Second defendant is paying tax to the Municipality. In the additional written statement, the second defendant has reiterated that he and his predecessor in title are enjoying the property for more than 40 years and therefore, he has perfected title over the suit property even by adverse possession.