Ramachandran vs Angamuthu Ammal

M. Chockalingam, J.—This second appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore, made in

A.S.No.204/92, wherein the judgment of the trial Court in O.S. No. 720/88 was affirmed.

The respondent herein as plaintiff filed the suit for declaration, recovery of possession and damages, alleging that the suit property originally

belonged to the plaintiff''s father namely Kaka @ Narayanasamy; that he executed a settlement deed in favour of the plaintiff on 20.11.1942; that

the plaintiff took possession of the property and has been paying the tax all along; that during her life time, she executed a Will in favour of

Sivaprakasam and Padmavathy; that the defendant was a close relative; that she permitted the defendant to be in occupation of the property in the

year 1983, and thus, the defendant has been in possession for the past five years; that the plaintiff wanted the same for her own use; that when a

demand was made, the defendant refused to hand over the same, which necessitated the plaintiff to file the suit.

The suit was resisted by the defendant stating that he got into possession of the property in the year 1973; that he raised a thatched house and

got electricity service connection; that he has been paying the tax and electricity charges also, and thus, he has acquired title to the property by

adverse possession, and hence, the suit must be dismissed.

The trial Court framed the necessary issues, tried the suit and decreed the same. An appeal by the defendant was also dismissed by the first

appellate forum. Hence, this second appeal has been brought forth by the defendant.

At the time of admission, the following substantial question of law was formulated by this Court:

Whether the Courts below are right in granting a decree notwithstanding the fact that the plaintiff could not establish her case of permissive

possession and notwithstanding the fact that the defendant has established his possession from the year 1973?

This Court heard the learned Counsel for the appellant and also the learned Counsel for the respondent on those contentions.

It is not in controversy that the plaint Schedule mentioned house property originally belonged to one Kaka @ Narayanasamy, the father of the

plaintiff; and that he executed a settlement deed in favour of the plaintiff on 20.11.1942, as evidenced by Ex.A1. The specific case of the plaintiff

was that considering the fact that the defendant was a close relative, she permitted him to occupy the suit house, and he has been there for five

years from 1983 onwards. On the contrary, the defence plea was that he got into possession of the property in the year 1973 itself; that he has

been in open, continuous, and uninterrupted possession and enjoyment of the property, and hence, he acquired title by adverse possession. The

first appellate Court in extenso has discussed the evidence and has negatived the defence plea and rightly too. In the original written statement,

what was averred was that the defendant got into possession of the property in the year 1973. Pending the first appeal, an application for

amendment of the written statement was filed, stating that he got into possession of the property in the year 1968; that a mistake has crept in while

stating the year as 1973 instead of 1968 in the original written statement, and hence, an opportunity should be given to him to correct the original

written statement. The said request was rightly rejected by the first appellate Court. It can be well stated that the attempt by the defendant before

the first appellate forum would be indicative of the fact that his alleged possession, even if to be accepted by the Court as one adverse, would fall

within the statutory period. However, he has not proved that he was in open, continuous and uninterrupted possession of the property for more

than a statutory period of 12 years, as required by law, to accept the plea of adverse possession. The first appellate Court has rightly rejected the

said plea. Thus, both the Courts below have recorded a concurrent finding in favour of the plaintiff that the plaintiff was entitled to the property;

that on permission, the defendant was put in possession, and hence, the defence plea of adverse possession was not only misconceived, but also

unsustainable. Therefore, this Court is unable to notice anything to disturb the concurrent findings of the Courts below.

For the foregoing reasons, this second appeal deserves to be dismissed, and it is, accordingly, dismissed, confirming the judgments and decrees

of the lower Courts and leaving the parties to bear their costs.