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1. The plaintiff, who was successful before the trial Court and lost his case before the first Appellate Court, is the appellant in this second appeal.

2. The parties are referred to as per their rankings in the suit.

3. The plaintiff filed the suit for declaration, possession and for mesne profits. The case of the plaintiff as per the averments in the plaint is as follows:-

The plaintiff is the owner of the suit property bearing Survey No. 125/2 of Chetti Chavadi Village comprised in patta Nos. 1 and 2 in Salem Taluk measuring 0.48.0 Hectares dry land in which the defendant unlawfully occupied the portion measuring about 1.20 acres. The suit property was originally portion of Chetti Chavadi Jaghir in Salem Taluk, which is a Sarva Inam. The entire Jaghir was purchased by the Magnesite Corporation of India under two sale deeds dated 31.8.1945 and after purchase, the Magnesite Corporation of India has been in enjoyment of both Melwaram and Kudiwaram rights in the entire Jaghir. The assets and liabilities of the Magnesite Corporation of India were taken over by the plaintiff in the year 1964 and from then onwards, the plaintiff has been in possession and enjoyment of the entire Chetti Chavadi Jaghir including the suit property. As per the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act of 1963, the entire Chetti Chavadi Jaghir was taken over by the Government in the year 1971 and thereafter, survey operations were carried out and the Settlement Tahsildar, Salem, conducted enquiry regarding the issuance of patta for the said lands in which the defendant also participated. The suit property is in Survey No. 125/2. The Settlement Tahsildar in his S.R. Nos. 160, 161, 162, 164, 169 and 170 passed orders on 07.4.1972 granting Ryotwari Patta to the plaintiff for S. No. 125/2. The appeal preferred by the defendant and others before the Inam Abolition Tribunal, Salem, in M.I.A. No. 157 of 1974 was dismissed on 08.9.1975. The plaintiff was in possession of the suit property and grant of patta has been confirmed by the Inam Abolition Tribunal (Principal Subordinate Judge), Salem. The defendant attempted to trespass into the suit property on or about 20.12.1976 for which action could be initiated by the plaintiff only as per law. The defendant made several attempts to trespass into the suit property. The plaintiff filed O.S. No. 697 of 1976 on the file of the Sub Court, Salem, for permanent injunction against the defendant and others. The defendant unlawfully entered into the suit property and filed written statement stating that he was in possession of the portion of the suit property. The plaintiff has withdrawn the said suit filed in O.S. No. 697 of 1976 by filing an application in I.A. No. 344 of 1978 with liberty to file a comprehensive suit on the same cause of action and the said petition was allowed permitting the plaintiff to withdraw the suit and file a fresh suit on the same cause of action. The defendant unlawfully occupied the area measuring about 1.20 acres in Survey No. 125/2 in Chetti Chavadi Village and he is a trespasser. There are fruit bearing trees grown up by the plaintiff in the area occupied by the defendant. Therefore, the plaintiff is also entitled for mesne profits. Hence, the suit.

8. The following substantial questions of law have been framed at the time of admission of the Second Appeal:-

(i) Whether Order 23 Rule 1(4) C.P.C. is not applicable as the prior suit was abandoned even before the defendant was served with summons; and
(ii) Whether the dismissal 'for the present' would amount to permission to file a fresh suit.

9. Heard the learned counsel for the appellant as well as the respondent.

10. The plaintiff claims that he is the owner of the entire property measuring 0.48.0 Hectares dry land in Survey No. 125/2 of Chetti Chavadi village comprised in patta Nos. 1 and 2 in which the defendant unlawfully trespassed in the portion, viz., suit property measuring about 1.20 acres. Further, according to the plaintiff, entire property was originally portion of Chetti Chavadi Jaghir and the entire Jaghir was purchased by the Magnesite Corporation of India as per sale deed dated 31.8.1945 and have been in enjoyment of both Melwaram and Kudiwaram rights in the entire Jaghir. It is also the case of the plaintiff that the assets and liabilities of the Magnesite Corporation of India were taken up by the plaintiff Dalmia Cement(Bharat) Limited in 1964 and was in possession and enjoyment of the entire Chetti Chavadi Jaghir including the suit property and thereafter, pursuant to Madras Inam Estates (Abolition and Conversion into Ryotwari) Act of 1963, the entire Chetti Chavadi Jaghir was taken over by the Government in 1971 and after enquiry, in which the defendant also participated, the Settlement Tahsildar, as per order Ex.A-1 dated 7.4.1972 granted Ryotwari Patta to the plaintiff for Survey No. 125/2 and granted patta under Ex.A-2. As per order dated 7.4.1972 patta book was also issued under Ex.A-3.

12. The said Order of the Settlement Tahsildar was challenged before the Minor Inam Abolition Tribunal(Principal Subordinate Judge), Salem by the defendant Uthandi and 9 others and the appeal in M.I.A. No. 157 of 1974 was dismissed under Ex.A-4 on 8.9.1975. Therefore, the grant of patta in respect of 0.48.00 Hectares to the Dalmia Cement(Bharat) Limited has become final. The claim of the defendant for grant of patta in respect of that land was negatived. The Settlement Tahsildar also found in the order Ex.A-1 that the plaintiff Dalmia Cement(Bharat) Limited have been in enjoyment of the suit property in Survey No. 125/2 by constructing watchman's shed and raising mango tope and guava tope and hold that M/s. Dalmia Cement(Bharat) Limited and its predecessor Magnesite Corporation of India Limited have been in continuous possession and enjoyment of the guava tope in S. No. 125/2 of Chetti Chavadi village from the year 1946 to 1972 and have been maintaining the tope by employing a watchman and auctioning the right of gathering the fruits of the trees annually and that the company is eligible to get patta for S. No. 125/2.