Roohnisha Beevi and 15 others vs A.M.M. Mahudu Mohamed and 29 Others

S.S. Subramani, J.—Plaintiffs 2, 3 and 5 to 10 and defendants 7, 18, 19 and 25 to 28 and 30 in O.S.420 of 1972, on the file of District

Munsif''s Court, Ramanathapuram, are the appellants. Suit filed by the plaintiffs, who are ten in number, was one for declaration of title and

consequential injunction, or in the alternative for recovery of property from defendants. The scheduled property is described as Survey Nos.256

and 257 having a total area of nearly 10 acres of which the plaintiffs claim the western one half. The property is included in Patta No. 471. Pending

suit, first plaintiff died and plaintiffs 2 and 3 and 7th defendant were recorded as his legal representatives.

The material averments in the plaint may be summarised as follows :-

As per Ex.A-1 dated 27-8-1873, and Ex-A-2 dated 18-5-1874, the plaint schedule property, i.e., western half in Survey Nos.256 and 257 was

purchased by late Kuppai son of Kattu Vava. It is further alleged that the acquirer was in possession of the property, and on his death, his rights

devolved on his two sons Mohammed Mohideen and Mohammed Ibrahim Sahib. It is further said that in a partition between the members of the

family, plaint property was allotted to Mohammed Mohideen and he was in absolute possession. Patta for the property was given in the name of

Mohammed Mohideen and his brother Mohammed Ibrahim Sahib, as per Patta No. 109 and kist was also being paid under the said patta. On the

death of Mohammed Mohideen, the right devolved on his children, namely, Mohideen Syed Ibhrahim Sahib and Kitur Mohideen, and also 4th

plaintiff and 8th defendant. Plaintiffs have given the genealogy and the same has been marked as Ex. A-3 in this suit. The eldest member of the

family Mohammed Syed Ibrahim Sahib son of Mohammed Mohideen, died long back, and the second son Kittur Mohideen, for the purpose of his

business, used to visit Ceylon. Even at the time of Revenue Settlement, the property stood in the name of Mohammed Mohideen and Mohammed

Ibrahim Sahib, named above. Thereafter, while patta for the property was being granted and the property was converted into ryotwari, plaintiffs

were not in India, and during that time, the eastern property owner, i.e., father of defendants 1 to 6, in collusion with the Karnam, obtained patta

for the entire property. On coming to know about the same on their return to India, Kithur Mohideen, second son of Mohammed Mohideen

represented the matter to the local Tahsildar. After enquiry, the Tahsildar passed an order to issue joint patta along with others. Third defendant

was aggrieved by that order, and he took the matter in appeal. The Appellate Authority was of the view that the order to grant joint patta was

without hearing the affected person, and accordingly set aside the order and remanded the matter for fresh consideration. At that time third

defendant put forward a contention that the entire property belonged to him. It is alleged that the said claim put forward by the third defendant is

not correct. Even on the date of suit, they are in possession. Plaintiffs are in possession of the western portion of the entire property of 10 and odd

acres. It is further said that the third defendant cannot claim any right over the western portion on the principle of estoppel, and at no point of time,

defendants 1 to 6 were in possession of the western portion of the entire plaint schedule. The cause of action is stated to be the attempt made by

third defendant to encroach upon the plaint property on 1-4-1972 and continuously thereafter. Third defendant died subsequent to the institution;

of the suit, and his legal representatives have been impleaded as defendants 33 to 39.

In the written statement filled by defendants 1, 2 and 4, they only said that they are not claiming any possession over the property. It is only the

third defendant who has got right over the same.

In the written statement filed by the third defendant, he denied the allegations in the plaint. He also denied the right; claimed by plaintiffs under

Exx.A-1 and A-2. According to him, neither plaintiffs nor their predecessors were in possession of the entire 10 acres. From paragraph 21

onwards, third defendant has put forward his claim. According to him, Survey Nos. 256 and 257 have got a total extent of 13 acres 63 cents, i.e.,

pymash Nos. 319 and 320, and the entire property was divided into two halves. The eastern half belonged to Mohammed Abdul Kader Ambalam

and Mohammed Sadak Ambalam. From the legal heirs of Mohammed Abdul Kader, Amabalam, third defendant''s father purchased the property

in the year 1925 under Ex.B-11. Likewise, from the legal heirs of Mohammed Sadak Amabalm, third defendant''s father purchased their share

also under Ex.B-12. Thus, the eastern half of the entire property came into their possession. Under Ex.B-13, an area of 5 acres and 16 cents was

purchased and that property is situated on the south western corner of the entire property. There was an oral sale in the year 1931 in respect of

plaint schedule and the same was purchased from one Mohammed Ibrahim Sahib. From 1931 onwards, third defendant''s father and after him,

third defendant was in absolute possession of the plaint schedule property, i.e., the western half also, as absolute owner. For the property

purchased by the third defendant''s father, a patta was also given to them as per Patta No. 350. No portion of the property is in Patta No. 109 as

claimed by the plaintiff. It is further stated in paragraph 23 of the 3rd defendant''s written statement that the 3rd defendant''s father orally gifted

Survey Nos.255 and 256 and confirmed the oral gift on 17-11-1962. As per Ex.B-10, 3rd defendant''s father also executed a settlement deed in

his favour. In paragraph 24, it is further said that whatever may be the right of others, from 1958 onwards, third defendant and his father had been

exercising absolute ownership and were enjoying the same openly and adverse to all other persons. So, the right, if any, is also barred by limitation

and adverse possession. In paragraph 26, it is further averred that the oral sale in favour of his father is not Mohammed Ibrahim Sahib referred to

in the plaint, but a different person. He prayed for dismissal of the suit.

Fifth defendant also filed a written statement supporting the claim of third defendant.

Defendants 40 and 41, who are purchasers subsequent to the institution of the suit, also filed written statement supporting the claim of third

defendant. Both of them contend that no portion of the plaint schedule property belonged to plaintiffs, and they are not in possession.

Trial Court marked Exx. A-1 to A-33 and Exx.B-1 to B-82. Exx.C-1 is the plan prepated by the Commissioner. Exx.C-2 and C-3 are Report

and Supplementary Report. On the side of plaintiffs, P.Ws. 1 to 5 were examined. On the side of defendants, D.Ws. 1 to 4 were examined.

It is seen that the suit was once dismissed, and the matter came up to this Court and remanded. After remand, D.W.5 was also examined.

The trial Court, after discussing the entire evidence, came to the conclusion that under Exx.A-1 and A-2, plaintiffs'' predecessor had obtained

right over 3 acres and 15 cents. As per the Commissioner''s Report and Plan, the property covered under Exx.A-1 and A-2 must also be within

the boundaries mentioned in the plaint. But plaintiffs are claiming an area of more than 5 acres, and the same is not identified. It further found that

the plaintiffs are not in possession of the property covered by Exx. A-1 and A-2. The oral sale claimed by 3rd defendant is not correct, and as per

Ex.B-10 also, the claim of the 3rd defendant cannot be sustained. But at the same time, it was found that the suit is barred by limitation and

adverse possession. When the matter was taken in Appeal in A.S. No. 2 of 1988, on the file of Sub Court, Ramanathapuram, the lower Appellate

Court also confirmed all the findings of the trial Court and dismissed the Appeal.

In this connection, it may be noted that on a comparison of the judgment of the trial Court as well as lower Appellate Court, it is seen that the

lower Appellate Court has mostly copied the judgment of the trial Court, even without entering an independent finding on most of the points. Most

part of the judgment is a verbatim copy of the trial Court''s judgment, and that is one of the complaints taken by the counsel at the time of his

arguments.

At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:-

Whether the Courts below have failed to correctly appreciate the pleadings of the defendants which on a correct construction would only lead

to a claim of joint ownership of a larger extent of land of about 10 acres of which the plaint schedule property is about one half being 5 acres and

18 cents?

Whether the Courts below have drawn incorrect conclusion on the facts established by Exx.B-10, B-11 and B-12.?

Whether on a correct interpretation of Exx. B11, B-12, read in conjunction with Ex.B-10 the Courts below have committed errors of law in

coming to the conclusion that the defendants had possessed the suit property adverse to the plaintiffs?

Whether on the pleadings does it not follow that the defendant''s claim is only to a joint possession of the plaint schedule property along with the

plaintiffs?

Whether in the absence of specific plea of ouster the defendants could set up a case of adverse possession in the facts and circumstances of the

case?

Whether in the absence of any discussion as to the claim of possession by the defendants of the suit property under the oral sale which had been

disbelieved the Courts below have not committed an error of law in concluding that the defendants and his predecessor had been in continued

possession?

Whether the Courts below have not committed an error of law in concluding that the defendants had perfected title by adverse possession

without scrutinising the materials available on record with reference to the period of adverse possession and with reference to animus on the part of

the defendants?

Before going into the questions of law, the exact finding of the trial Court, as copied and confirmed by the lower Appellate Court, may be

stated thus:-

In paragraph 17 of the lower Appellate Court judgment, it has been found that on a comparison with the Commissioner''s Report, the boundary

description of the plaint property is correct and Exx.A-1 and A-2 properties are included within the boundaries. It has been further found that

Exx.B-11 and B-12, sale deeds in favour of 3rd defendant''s father, do not include Exx.A-1 and A-2 properties, and the plaint schedule property

is situated on the western side of Exx.B-11 and B-12 property. It is further found that as per Exx.B9 and B-10, even third defendant''s father

recognised that the western property belonged to Kuppai, predecessor of the plaintiffs, and Kuppai was a mortgagee for eastern portion acquired

by them. Both the Courts below have further found that the reference to Mohammed Ibrahim Sahib in Ex.B-10 is none other than the plaintiffs''

predecessor and that he was owning the property on the western side. From the other exhibits, it was also found that the plaintiffs have got some

property as per Exx.A-1 and A-2, and the same is situated within the boundaries described in the plaint. Even from the documents produced by

the defendants, both the Courts below found that plaintiffs'' predecessor has got properties in Survey Nos.256 and 257. After so holding that the

plaintiffs have got title to the property under Exx.A-1 and A-2, it was found that the claim is for nearly 5 acres 18 cents in Survey Nos.256 and

257, and that has not been identified. Both the Courts below were of the view that Exx.A-1 and A-2 cover only; 3 acres 15 cents, and how

plaintiffs claim five acres has not been explained. In that view of the matter, both the Courts below found that the claim for 5 acres is not

substantiated. Both the Courts below have further found that the claim of the third defendant that there was an oral sale in respect of the western

portion is not true. In the written statement, it was stated that the oral sale was in 1931, but in the deposition he said it as 1933. Both the Courts

below, found that no transfer could be made by an oral sale for the western portion and legally it is not permissible. But at the same time, the trial

Court as well as the lower Appellate Court found that the reference to one Mohammed Ibrahim Sahib in paragraph 21 of the written statement can

only be regarding plaintiffs'' predecessor. This, According to there learned counsel for the appellants is a misstatement, for, even the third

defendant has admitted in paragraph 26 of the written statement that Mohammed Ibrahim Sahib mentioned at para 21 is not plaintiffs''

predecessor, but a stranger. It is further found that there is no documentary evidence to show that the third defendant or his father ever obtained

title to the western half and in 1958, the alleged oral gift in respect of the western portion also is not true. It was further found that as per Ex.B-10,

the defendant No. 3 also did not get any right over the western half of the plaint schedule survey number, but it was found that the third defendant

might have been in possession and the title of the plaintiffs is barred by limitation and adverse possession. The trial Court as well as the lower

Appellate Court relied on Exx.B-4 and B-5 for the said purpose, and also various revenue receipts, which are marked as Exx. B-32 to B-81. So

holding, conclusion was arrived at by the Courts below that under Exx. A-1 and A-2 plaintiffs obtained title, but that is only for 3 acres 15 cents

and not for 5 and odd acres as claimed in the plaint, and that is also lost by adverse possession and limitation.

In view of the concurrent findings of the Courts below that the plaintiffs'' predecessor had obtained title under Exx.A-1 and A-2, and 1 also the

finding that the third defendant has not obtained right over the western half, the only question that requires consideration is, whether the plea of

adverse possession could be sustained, and whether the claim of the plaintiffs for 5 and odd acres also could be sustained. For the said purpose, I

think, the substantial questions of law raised in this Second Appeal can be considered together.

First I will have to consider whether the property has been identified. In the Commissioner''s Report and Plan, an area of 10-17 acres is

marked in red colour and an area of 3-46 acres is coloured in yellow. The name of the plaint property is Pattanathu Maraikkar Thottam and that is

the red colour plot in the plan. It is out of this property, plaintiffs claim one half. The yellow marked portion is known as Kallappoo Magan

Thottam. While describing the plaint property in Exx. A-1 and A-2, the southern boundary is shown as a road. Courts below have found that that

description is correct. It is further found that the other three boundaries shown in Exx. A-1 and A-2 have also been identified by the

Commissioner, and that is why the finding is that the property covered in Exx.A-1 and A-2 is included within the boundaries as described in the

plaint. In fact, the Commissioner, in his plan, has also given details of the names of the boundaries then existing at the time of Exx. A-1 and A-2

and also how far the names have changed by devolution of those properties. The Courts below have also found that the identification of the yellow

and red coloured portions is not disputed by either party, and the identification is correct. Once the identification of 10-17 acres is admitted, the

only question that requires consideration is, whether the plaintiffs are entitled to half right over the same. For the said purpose, Exx. B-11 and B-12

which are admittedly situated on the eastern side have to be identified. To the advantage of the appellants, in Exx. B-1l to B-13, the side

measurements have also been given. If on the basis of the side measurements, Exx.B-11 to B-12 could be identified, naturally, the remaining

property can only be the plaint schedule. Taking along with the same, the boundaries situated cm the western, northern and eastern sides also have

to be correlated. Courts below have also agreed that they tally with the plaint description. Nobody has a case that in between the boundaries, any

person has got any other properties. If so, even though the area described in Exx.A-1 and A-2 may be 3 acres and 15 cents, if on actual

measurement, it is a little more, plaintiffs, cannot be non-suited for that reason. That is what the Commissioner has done while identifying the

property. The Commissioner has found that the property covered by Exx.B-11 and B-12 is referable to BTG line, and the Commissioner has also

noted the old survey stones therein. In fact, if both the properties are enjoyed by the same person, there is no necessity for planting survey stones

in the BTG line.

Both the Courts below have found that the boundary description of the plaint schedule taken along with the description in Exx.A-1 and A-2 is

correct. Third defendant, in his written statement, has also said that the survey numbers 256 and 257 have a total area of 13 acres 63 cents and

they are included in Pymash Nos. 319 and 320. He has further said that this property was divided into two equal halves, western half and eastern

half. For the eastern half, Exx.B-11 and B-12 sale deeds were taken by his father. For the south western comer, another sale deed was also taken

as Ex.B-13. Even though the entire area is 13 acres 63 cents, as per the Survey Numbers, the Commissioner has identified the red marked portion

as Pattanathu Maraikkar Thottam, and the yellow marked portion as Kallappoo Magan Thottam.

Exx.B-11 and B-12 respect of portions of Pattanathu Maraikkar Thottam, and Ex.B-13 is in respect of Kallapoo Magan Thottam. These are two

blocks purchased by third defendant''s father as per the above exhibits, where boundary description has also been given. All the properties after

identifying Exx.B-11 and B-12 and situated on the western side are covered under Exx.A-1 and A-2, excluding the yellow marked portion, and a

small portion OPQRSN plot in the red marked portion, which is another property known as Kallappoo Magan Thottam.

Ex. B-13 is a sale deed in respect of Kallappoo Magan thottam taken in the name of the third defendant''s father. The Commissioner has also

noted a row of trees, which is like a boundary on NSRQ line and all these trees are more than 40 years old. Kallappoo Magan Thottam is

described under Ex.B-13 as having an area of more than 5 acres, In fact, the area covers the yellow marked portion (3 acres and 46 cents) and

OPQRSN plot. Third defendant also has no case that under Ex.B-13, any portion of Pattanathu Maraikkar Thottam is included therein, even

though he has a case that the properties are covered in S. No. 256 also. So, the identification made by the Commissioner that the plaint property is

ABTGHPOA plot is to be accepted. Courts below, for dismissing the suit, have said that the plaintiffs have title only for 3 acres 15 cents, and they

cannot claim anything more. That is not the way to identify a property when the same is also covered by boundaries. In 1955 K.L.T. 647 (Devan

Krishnan Kartha v. Kochu Mohamed Pariathu), a question came as to how to identify a property when there is a misdescription, a learned Judge

of the Kerala High Court said thus:-

.... The evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining factors when the identity of the property is

put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in-conflict with the

rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate, and the rest is regarded as

erroneous or inaccurate descriptions...

(''In Tamil Nadu ''lekhom'' is known as pymash number).

The said principle was accepted in the subsequent decision reported in 1957 K.L.T. 742 (Full Bench) (Ouseph Chacko v. Krishna Pillai Govinda

Pillai).

In AIR 1986 Kerala 236 (Chumar v. Narayanan Nair), learned Judge said thus :-

Where on a construction of a document transferring title to hold a property, it is clear that the intention of the parties was to transfer a parcel of

land within well defined boundaries, any erroneous statement of survey number or omission to state it should be rejected as false demonstration.

If this principle is applied, merely because Exx. A-1 and A-2 make mention of only a lesser extent, and if in fact, within the boundaries a larger

area is included, plaintiffs will be entitled to the same. Regarding the boundaries, the finding of the Courts below is that Exx.A-1 and A-2

properties tally with the present plaint description. The finding of the Courts below that the plaintiffs have not proved title t6 5 acres 18 cents

therefore, cannot be accepted. The further finding that the property has not been identified is also not correct. Exx.A-12, A-17 and A-22 also

prove that plaintiff''s predecessor had patta for the property covered by Exx.A-1 and A-2 and are paying kist.

If so, the extent mentioned in Exx.B-11, B-12 and B-13 also cannot be correct when compared with Ex.B-10. In this connection, the finding

of Courts below relying on Exx. B-4 and B-5, patta, the defendant''s predecessor was in possession of the property is also a misreading of the

evidence. If only the Courts below had gone through the patta granted to the third defendant and his predecessors, it could have found that that

was only for Pymash Nos.319 and 320, and not for the entire extent or for the entire survey number. Third defendant himself has stated in the

written statement that for Survey Nos. 256 and 257, the Pymash Numbers are 319 and 320. Patta was granted in favour of 3rd defendant only for

Pymash Nos. 319 and 320 Earls. This was overlooked by the Courts below, and the entire tax receipts have also been issued on the basis of this

patta. So, if the title is found, and the claim of the defendants is based only on adverse possession, we have to consider whether that claim is

proved in this case. In this connection, the pleading of adverse possession will have to be considered. The same is stated in paragraphs 21 and 24

of the written statement of third defendant. In paragraph 21, the only statement is that they nave purchased the property by oral sale, and the

plaintiffs or their predecessor nave no right over the western portion and the oral sale was in 1931. In paragraph 24, it is contended that even if any

person has got any right including the plaintiffs the third defendant and his predecessor, to the knowledge of others, had been enjoying the property

openly and adversely from 1958 onwards, and the title, if any, is lost by adverse possession and prescription. Why the third defendant has taken

1958 is, that according to him, in 1958, his father orally gifted the same, and it was affirmed in 1962. The case of oral-sale in 1931 was found by

the Courts below as invalid, and there was also no case that possession passed thereunder. It has to be further noted that in paragraph 26 of the

written statement, it is said that Mohammed Ibrahim Sahib is not the predecessor of the plaintiffs, who gave the oral sale. If he is not the plaintiffs''

predecessor, defendants must further prove that the person who gave the oral sate was in possession and was in a position to hand over

possession to defendants'' predecessor. In fact, even the third defendant has not spoken anything about the oral sale, when he was examined,

except stating that the oral sale was in 1933. That part of the case has been disbelieved by the Courts below. But, there is a finding by the Courts

below Mohammed Ibrahim Sahib referred to in paragraph 21 can be plaintiffs'' predecessor. That part of the finding is against the defendants''

admission itself, and even plaintiffs have no such case. So, if there cannot be any oral sale, there cannot be any question of taking possession on

that basis. That is why he pleaded adverse possession from 1958. Under Ex.B-10'', third defendant''s father executed a settlement deed in his

favour. In that document. he refers to an oral gift in 1958, and it is also said that it was in respect of the properties covered by that document.

Courts below have found that Ex.B-10 property does not cover the western portion. If so, there cannot be any question of handing over

possession by the third defendant''s father to the third defendant either by oral gift or under Ex.B-10. In this connection, Item No. 6 in Ex.B-10

shows that even in respect of Pattanathu Maraikkar Thottam, only a portion has been gifted and the total extent included therein is 8 acres 64

cents, i.e., portion of Pattanathu Maraikkar Thottam and Kallappoo Magan Thottam. If the entire Pattanathu Maraikkar Thottam is covered by the

gift, the extent would have been 10 acres 17 cents, and the description ought to have been for the entire 13 acres 63 cents. But the donor is very

definite in his statement that it is only portions of these properties and those properties are also included in Patta No. 292. On going through the

patta, I have already said that it is only for portions of Pymash Numbers, and again, while describing the property, the donor is again very clear,

when he says:-

The intention is very clear, that the donor did not intend, nor did he convey possession of the entire Pattanathu Maraikkar Thottam. From the body

of Ex.B-10, it is further clear that it was the property which was in his possession and which he owned, and which was the oral gift earlier, was

affirmed in Ex.B-10. If so, the claim of third defendant that he came into possession of the entire Pattanathu Maraikkar Thottam is to be

disbelieved.

Ex.B-10 only reaffirms the earlier stand of a gift and no possession is handed over under that document. So, the third defendant cannot say

that in 1962 also, he came into possession of properties covered by Exx.A1 and A2.

In this connection, we have to consider whether the plea itself could be accepted. In the latest decision of the Supreme Court in Dr. Mahesh

Chand Sharma Vs. Smt. Raj Kumar Sharma and others, their Lordships said:-

.... we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the ""rights of the true

owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.

In that case, the plea of adverse possession read thus:-

The plea of limitation raised in para (8) of the defendant''s written statement was in the following words:-

It is denied that the suit of the plaintiff is within limitation. The answering defendants and the predecessor-in-interest, Rajender Nath, have been

in case in adverse possession of the property in suit since 1954.

While considering this plea, their Lordships said that if that plea goes and he has no other alternate case, the entire case of adverse possession will

have to go. In paragraph 32 of the judgment, after extracting the plea regarding ''adverse possession'', their Lordships said:

... It is also well established that the party pleading adverse possession must state with sufficient clarity as to when his adverse possession

commenced and the nature of its possession....

As I have said earlier, the finding of the Courts below is that under Ex.B-10, the claim of third defendant that he obtained the entire 13 acres and

63 cents is not true, and there is an omission in the document, cannot be accepted. According to the third defendant, Survey No. 256 was omitted

to be included in Ex.B-10. Survey No. 256, according to the survey records, has an area of 4 acres 99 cents. So, either on the basis of the oral

gift or on the basis of Ex.B-10, there cannot be any question of adverse possession. The revenue receipts also do not prove any possession, for, it

is only for a part of the survey numbers. In this connection, it must also be noted that the plea of adverse possession means recognising or admitting

the antecedent title of another person. In P. Periasami (Dead) by Lrs. Vs. P. Periathambi and Others, of the judgment, their Lordships said:

Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.

In Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc., of the judgment, their

Lordships further said thus:-

Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article

65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal

evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts,

alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained

from the facts and circumstances of each case, the person who Bases his title on adverse possession, therefore, must show by clear and

unequivocal evidence, i.e., possession was hostile to the real owner and amounted to a denial of his tide to the property claimed.

The third defendant was also examined as D.W.1. His evidence is vague. But the main piece of evidence that was projected to prove an overt act

was the alleged execution of a mortgage deed of the entire survey numbers 256 and 257 to the Government for taking an agriculture loan. Ex. B-9

is the document produced for the said purpose But it is seen that even though they have taken an agriculture loan, there was no enjoyment of that

property, and no agricultural operation was also done. Ex.B-14 shows that the Government wanted to withdraw the loan since the agricultural

operation was not effected. That means, even though a bond was executed in favour or the Government, they did not enjoy the property as

alleged. If that is the piece of evidence to prove the overt act, that overt act did not come into effect by non-enjoyment. The finding of the Courts

below that the plaintiffs have lost their right, if any, adverse possession is a finding on no evidence. The burden to plead and prove in the case of

adverse possession is very heavy. The right of a true owner should not be taken away merely on the basis of technical pleas, and when the same

has been failed to be proved by good evidence, no Court should recognise the same. As held by the Supreme Court, a person who claims adverse

possession has no equities in his favour. If he fails to prove that, lie should not be given the benefit of continuing in possession. In this case, even the

claim of possession by the third defendant over the plaint schedule property is not proved.

If the title is found, and the plea of adverse possession also fails, and even the claim of possession having been also found against, the plaintiffs

will have to be given a decree. Then the question comes as to the property to which they are entitled.

In the plan prepared by the Commissioner, the red and yellow marked portions, i.e., ABCDEFGHIJKLMNO plot is hiving a total area of 13

acres 63 cents. Out of this, MNSRHUKL Plot marked in yellow is an extent of 3 acres and 46 cents, and that is known as Kallappoo Magan

Thottam. This is a portion of property covered under Ex.B-13. A portion of Ex.B-13 property is also included in the red marked portion, i.e.,

OPQRSN Plot. Before the Commissioner, plaintiffs have represented that the palmyrah trees are the dividing line between the property which they

claimed and that of the defendants. I do not think that the plaintiff can claim a right on that basis. The row of trees is not boundary Hue, and it is

situated in the middle portion of the property covered under Ex.B-13. So, naturally, that portion is in enjoyment of the defendant, is clear.

Likewise, the Commissioner also noted survey stones on the B point and also on the southern side. That divides the western and eastern portions

of the property. If this comes within the common enjoyment of the same person, there is no necessary for a survey boundary, and that too, with the

same survey number, namely, S. No. 257. That also shows that BT line must be the dividing line between the plaintiffs property and the

defendants'' property. Taking into consideration the above facts, plaintiffs are entitled to succeed and they are entitled to a declaration of

ABTGHQPOA Plot which has an extent of 5-18 acres. The claim of the third defendant over the said plot is rejected and the appellants are found

to be in possession of the same. They will be entitled to a declaration of title and consequential injunction as prayed for. The questions of law are,

therefore, found in favour of the appellants.

Learned counsel for the respondents submitted that being concurrent findings, of fact, this Court should not interfere u/s 100, C.P.C. The

argument is correct. Bat, in this case, I have already said that the lower Appellate Court has only copied a major portion of the trial Court''s

judgment. I do not find that the lower Appellate Court has applied its mind in ''confirming the judgment of the trial Court. In fact, learned counsel

for the appellants pointed out to me certain paragraphs of the trial Court''s judgment, and wanted me to compare the same with that of the lower

Appellate Court''s judgment. From paragraph 16 onwards, the discussion begins. Till the judgment concludes, I do not find any change, even a

comma, in the judgment of the lower Appellate Court. It is a complete copy of the trial Court''s judgment without his own finding. So, it cannot be

said that it is a confirming judgment, because there was no application of mind. It is only a judgment which has been copied by the lower Appellate

Court. Therefore, I do not think, I will be acting in excess of my jurisdiction. In fact, I am acting as the first appellate Court. Even on merits the

conclusions reached by the trial court in its judgment as copied by the lower Appellate Court cannot be sustained in law. In the result, the judgment

of the trial Court, as copied by the lower Appellate Court, is set aside, and the Second Appeal is allowed. Appellants are also entitled to their

costs in this Second Appeal. The Commissioner''s Plan Ex.C-1 will form part of the decree. No grounds have been made out to receive additional

evidence, and so C.M.P. Nos. 10042 of 1989 and 536 of 1997 are dismissed.