M. Duraiswamy, J. - (1.)THE above Second Appeal arises against the judgment and decree passed in A.S. No. 27 of 1996, on the file of the Principal Subordinate Court, Srivilliputtur confirming the judgment and decree passed in O.S. No. 454 of 1994, on the file of the Additional District Munsif Court, Srivilliputtur.
(2.)THE legal representatives of the deceased first respondent have filed the above Second Appeal. The respondents are the legal representatives of the deceased plaintiff. The plaintiff filed the suit in O.S. No. 454 of 1994 for declaration and permanent injunction.
The brief case of the plaintiff is as follows:

"According to the plaintiff, the second defendant is her brother. The first defendant is the wife of Late Chinnappan, who is the brother of the plaintiff and the second defendant. The suit property originally belonged to one Chinnammal who is the mother of the plaintiff and the second defendant and the mother -in -law of the first defendant. The said Chinnammal died intestate leaving behind the plaintiff and the defendants as her legal heirs. After the death of Chinnammal, the suit property was succeeded by the plaintiff and the defendants 1 and 2. In the year 1970, the said Chinnammal executed a settlement deed in favour of the second defendant in respect of the suit property. On 09.11.1970, the second defendant gave the northern portion of the suit property to the plaintiff.

(ii) The second defendant filed a suit in O.S. No. 193 of 1975 against the first defendant for declaration in respect of the suit property. The plaintiff was not a party to the said suit. The defendants 1 and 2 compromised the matter and did not prosecute the suit. The compromise decree passed in the said suit is not binding on the plaintiff. The plaintiff came to know about the compromise decree in the year 1979. When the plaintiff explained about the compromise to the defendants, they executed varthamana letter dated 28.04.1979 stating that the suit property belongs to the plaintiff. Hence, according to the plaintiff, the defendants cannot claim right in respect of the suit property. Thereafter the plaintiff divided the property east -west and leased out the western portion to one Pushparaj on a monthly rent. The plaintiff prescribed title by adverse possession. Since the defendants interfered with her possession, the plaintiff sent a legal notice dated 14.08.1986. The second defendant sent a reply dated 29.08.1986, admitting the title of the plaintiff. But, subsequently since the defendants tried to interfere with the possession of the plaintiff and claimed title over the property, the plaintiff has filed the suit.

(3.)THE brief case of the first defendant is as follows:
"According to the first defendant, the property was not given to the plaintiff under the varthamana letter. The averment that the first defendant tried to interfere with the plaintiff's possession is false. The first defendant has given a proper reply to the notice sent by the plaintiff. The plaintiff has no right or title in respect of the suit property. The property was not leased out to one Pushparaj. The tenant in possession of the property is one Joseph Pushpanathan and not Pushparaj. The property was leased out to the said Joseph Pushpanathan by the first defendant. The first defendant is in possession of the southern portion of the property. The tenant is in possession of the property since 1989, paying the monthly rent to the first defendant. The first defendant also mortgaged the suit property three times under registered mortgage deeds and also discharged the mortgage. According to the first defendant, the property is under mortgage now. The plaintiff and the first defendant are co -sharers and therefore, the suit filed by the plaintiff for permanent injunction is not maintainable. The plaintiff should have filed the suit for partition and not for declaration and injunction. In these circumstances, the first defendant prayed for dismissal of the suit."