Muniyandi and Others vs Alagiri, Mookkan, Paulraj and Mariappan

R. Mala, J.—This Second Appeals has been filed by the appellants against the judgment and decree of the learned Subordinate Judge,

Aruppukkottai dated 23.02.2004, in A.S. No. 64 and 65 of 2002 confirming the decree and judgment made in O.S. No. 303 of 1997 dated

10.07.2000 on the file of the District Munsif, Aruppukkottai.

The averments in the plaint is as follows:

The suit items 1 and 2 were originally belonging to one Iruli, who is the paternal grandmother of the plaintiffs and defendants. The third item of the

suit, which is grama natham was belonging to One Koosali, who is the husband of said Iruli. Both Koosali and Iruli died. They were having two

sons and one daughter namely, Subban, Alagiri and Mariammal. Alagiri is the first plaintiff. Mariammal is the second plaintiff and the children of

Subban are defendants 1 to 6. After the death of Iruli and Koosali, the plaintiffs and Subban, who is the father of the defendants had jointly

enjoying the suit properties. After the death of Subban, the defendants and plaintiffs have enjoyed the properties. Kist receipts stand in the name of

defendants. While being so, the 4th and 5th defendants as plaintiffs filed a suit for declaration and injunction in O.S. No. 151 of 1984 before the

District Munsif Court, Manamadurai against the second plaintiff and her children. The suit has been dismissed by the learned District Munsif,

Manamadurai on 08.01.1986 stating that the suit properties are undivided joint family properties of the plaintiffs and the father of the defendants.

Against the judgment and decree, the defendants therein had preferred an appeal in A.S. No. 47 of 1988 before the learned Subordinate Judge,

Devakottai, where the same was dismissed and confirming the judgment and decree passed in O.S. No. 151 of 1984. After that, these plaintiffs

demanded partition, but the defendants evading the same. Hence, the plaintiffs have come forward with the suit for partition claiming 2/3rd share in

the suit properties. During the pendency of the suit, the second plaintiff died and her legal heirs were impleaded as plaintiffs 3 to 5 and prayed for a

preliminary decree for partition.

The gist and essence of Written Statement filed by the fourth defendant is as follows:

The suit is not maintainable both in law and facts. The first plaintiff and his power agent have not residing in the said village and they are not in the

joint possession of the suit properties. Items 1 and 2 of the suit properties are only belonging to Iruli. The third item of the suit property is not

belonging to her. It is only a government poramboke and the defendants put up a hut and residing there. The third item of the suit property is not a

joint family property. The suit properties are in possession of the defendants prior to the institution of the suit in O.S. No. 151 of 1984. The

defendants are in possession of the suit properties for more than statutory period with adverse to the interest of the plaintiffs. Hence, they

prescribed title by adverse possession. There is no cause of action for the suit and thus, the defendants prayed for the dismissal of the suit.

The learned District Munsif, Aruppukkottai after considering the averments both in the plaint and written statement, had framed four issues.

Considering the oral evidences of P.W.1, D.W.1 and documents in Exs.A1 to 5, has passed a preliminary decree for partition in respect of the

items 1 and 2 of suit properties and dismissed the suit in respect of the third item of suit property. Against the decree and judgment, the defendants

had preferred an appeal in A.S. No. 172 of 2001 before the Subordinate Judge, Aruppukkottai. The learned Subordinate Judge, after considering

the arguments of both sides and framing proper points for consideration, had dismissed the appeal and confirmed the decree and judgment of the

trial Court.

Aggrieved against the judgments and decrees of both trial Court and first appellate Court, the defendants/ appellants have preferred the present

second appeal.

The substantial questions of law arises in the Second Appeals are as follows:

I Would not the filing of the suit viz., O.S. No. 151 of 1984 (Ex.A1), in which the plaintiffs therein had asserted title, be proof of adverse

possession claimed by the present defendants.

The learned Counsel appearing for the appellant has mainly contended that he has prescribed title by adverse possession and he culled the

portion in Ex.A1, judgment in O.S. No. 151 of 1984 on the file of the District Munsif, Manamadurai. In that, it was stated that the first defendant

(Mariammal), the second plaintiff herein has claiming her share in the suit property. But, the plaintiffs/appellants 4 and 5 herein, filed a suit in O.S.

No. 151 of 1984 for declaration and the same has been dismissed. He has prescribed the title by adverse possession. He relied upon the decisions

reported in Mohammad Baqar and Others Vs. Naim-un-Nisa Bibi and Others, , Annasaheb Bapusaheb Patil and others Vs. Balwant alias

Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc., , Indira Vs. Arumugam and Another, and 2002-1 L.W.661 (Ammena Ammal v.

Jahabar Nachiar and Ors.). In view of the prepositions laid down in the citations, the appellants are prescribed title by adverse possession and

thus, he prayed for allowing the appeal.

Per contra, the learned Counsel for the respondents would contend that in Ex.A1, the learned District Munsif has given a clear finding that the

suit properties are undivided joint family properties and hence the plaintiffs/appellants 4 and 5 herein are not entitled for declaration and injunction,

against the same, the plaintiffs/appellants 4 and 5 herein had preferred an appeal in A.S. No. 47 of 1988 and the same was also dismissed by the

Subordinate Judge, the judgment in A.S. No. 47 of 1988 on the file of the Subordinate Judge, Devakottai was marked as Ex.A3, on that date only

the limitation starts, since, the suit has been filed within 12 years from the disposal of the suit in O.S. No. 151 of 1984, so, the appellants herein

have not acquired title by adverse possession and he relied upon the decision reported in Veeramuthu Vs. Puttalayee, and prayed for the dismissal

of the appeal.

Respondents/plaintiffs have raised the plea that items 1 and 2 of the suit properties are belonging to grandmother Iruli and item 3 of the suit

properties is belonging to grandfather Koosali. But, the trial Court as well as the first appellate Court had come to the conclusion that the third item

of suit properties is government poramboke and dismissed the suit in respect of item No. 3, but the plaintiffs/respondents herein had not preferred

any appeal against the same. Hence, in respect of third item of suit property, the findings of the trial Court is final.

Admittedly, the first and second items are originally belonging to grandmother Iruli. Iruli and Koosali had three children by name Subban, father

of the appellants herein, Alagiri, first respondent herein and Mariammal, mother of respondents 3 to 5 herein. Since Mariammal died during the

pendency of the suit, her legal heirs were impleaded as plaintiffs 3 to 5 in the suit itself. Hence, I am of the opinion each family is entitled to get 1/3

share in the items 1 and 2 of the suit properties.

The learned Counsel appearing for the appellants had raised the plea of adverse possession. It is well settled principle of law that the adverse

possession to be properly pleaded and proved by the person, who pleaded the adverse possession. In this case, the appellants had raised the plea

of adverse possession. Hence, it is the duty of the appellants to prove the same and therefore he filed the documents Exs.A1 to 5 before the trial

Court. Exs.A1 and A2 are the judgment and decree dated 08.01.1986 made in O.S. No. 151 of 1984 passed by the learned District Munsif,

Manamadurai. Exs.A3 and A4 are the judgment and decree dated 23.01.1991 made in A.s. No. 47 of 1988 passed by the learned Subordinate

Judge, Devakottai. Ex.A5 is the power deed executed by the plaintiffs to his power agent Balasubramanian. The appellants have not filed any

single document to show that the appellants are in continuity of adverse possession to the interest of the co-sharers with the knowledge of the co-

owners for more than statutory period.

It is pertinent to note that since the respondents herein had claimed the share in the suit properties, immediately, the appellants 4 and 5 herein

as a plaintiffs had filed the suit in O.S. No. 151 of 1984 that has been dismissed with a finding that the suit properties are undivided joint family

properties, as per Exs.A1 and A2. Against the same an appeal also had preferred which was also ended with dismissal as per Exs.A3 and A4. In

such circumstances, the appellants'' possession in the suit properties is not an adverse possession to the interest of the co-sharer till the disposal of

A.S. No. 47 of 1988 on 23.01.1991.

While perusing the decision reported in Mohammad Baqar and Others Vs. Naim-un-Nisa Bibi and Others, , it has held that as under the law,

possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them unless there is a denial of their right to their knowledge by

the person in possession, and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is

participation in the profits to any degree. While considering the above citation, the suit in O.S. No. 151 of 84 has been dismissed on 08.01.1986

and subsequently the appeal in A.S. No. 47 of 1988 has been dismissed on 23.01.1991. If at all the adverse possession will be start after the

dismissal of the appeal i.e. 23.01.1991, the suit has been filed well within time i.e.24.11.1997.

The learned Counsel also relied upon the decision in Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil

(dead) by LRs. and heirs etc., and contended that the burden lies heavily on the member setting up adverse possession to prove adverse character

of his possession by establishing affirmatively that to the knowledge of the other member he asserted his exclusive title and the other members were

completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Here, the respondents

herein demanding the share in the suit properties and the same has been denied by the appellants herein, immediately, the appellants 4 and 5 herein

had filed the suit for declaration and injunction which was dismissed stating that the suit properties items 1 and 2 are undivided joint family

properties. Against the same, an appeal was also preferred and the same was also dismissed. But, there is no evidence before the trial Court that

the appellants herein are in possession and enjoyment of the suit properties and the adverse animus with the knowledge of the respondents

continued for statutory period. So, the appellants herein has miserably failed to prove that they are prescribed title by adverse possession.

The learned Counsel for the respondent would rely on the decision reported in 2002-1 L.W.661 (Ammena Ammal v. Jahabar Nachiar and

Ors.) and contended that mere oral evidence for proving possession in respect of house property is wholly inadequate. and more concrete

evidence is necessary. There is no quarrel over the preposition. But, here except the oral evidence, no other documents have been filed.

The person in adverse possession of property asserting title himself, possession in order to become adverse possession must be actual and

uninterrupted, open and notorious, exclusive, adequate in continuity, publicity and extent and under claim of right for statutory period. In this case

also, from the beginning itself, the appellants are in possession and enjoyment. The above argument does not merit acceptance, because the

appellants herein are in possession of the suit property on behalf of the co-sharer till the dispose of appeal under Exs.A3 and A4.

The appellants counsel would rely upon the decision reported in Veeramuthu Vs. Puttalayee, and contending that a person in adverse

possession of a property asserting title in himself, has been held to be not possessed of the title to the property or entitled to continue in possession

in any judgment or decree of a court, is by itself not sufficient to interrupt the continuity of adverse possession and deprive him of his claim to

perfect title on the basis of such continuous adverse possession. The respondents herein are the co-sharer of the properties. As soon as the

respondents claiming share in the property, the appellants filed the suit in O.S. No. 151 of 1984 and the same was dismissed as per Exs.A1 and

A2 and the appeal was also dismissed as per Exs.A3 and A4 on 23.01.1991 and the suit has been filed on 24.11.1997. So, the suit is filed within

12 years. If at all, if the Court presumes the adverse possession starts only on the date of dismissal of the suit on 23.01.1991. The suit has been

filed on 24.11.1997 within 12 years. Hence, they are not prescribed title by adverse possession.

Consequently, I am not able to see any error in the judgments and decrees of the Courts below, which has accordingly chosen to decree the

suit and passing a preliminary decree of 2/3rd share in item 1 and 2 of the suit properties. Hence, the second appeal, therefore fails and the same is

dismissed. Considering the relationship of both parties, no costs.