Sundaravalli and Another vs N. Narayanasamy

K. Govindarajan, J.—Though Mr. A.S. Narasimhan, Advocate, filed Vakalath on behalf of the respondent, he appeared and submitted that

he has no instructions from the parties, in spite of his letter.

The plaintiffs who failed in their attempt to get a decree for declaration and possession, preferred this second appeal.

According to the plaintiffs one Gnanaprakasam purchased the suit property in 1964. Under Ex. A2, the said Gnanaprakasam sold the suit

property to one Sundara Udayar. The said Sundara Udayar, in turn, sold the same under Ex. A1 to one Lakshmi Ammal, the mother-in-law of the

plaintiffs. The said Lakshmi Ammal executed a settlements deed, dated 5-2-1973 and settled the said property in favour of the plaintiffs.

According to the plaintiffs, the defendant was put in possession of the suit property as tenant and he has not vacated the property in spite of

request. Hence the plaintiffs have come to the Court seeking the relief for declaration and for possession in respect of the suit property.

The defendant contested the suit contending inter alia that the suit property was purchased by one Lakshmiah Chetty, D.W.2, in Court auction

sale held in the Execution Proceedings in the same suit and from D.W. 2 the defendant purchased the suit property and is in possession. He also

claimed title by adverse possession.

The trial Court rejected the suit holding that the plaintiffs cannot get any title in the suit property, as the vendor of the defendant purchased the

suit property and sold the same to the defendant. The trial Court also found that though the auction sale of the suit property in favour of the said

Gnanaprakasam was confirmed, possession was not given and so the said auction sale in favour of the said Gnanaprakasam cannot be held valid

and dismissed the suit. So the plaintiffs preferred an appeal in A. S. No. 43/1989 against the judgment and decree of the trial Court. Though the

appellate Court found that the auction sale in favour of the said Gnanaprakasam which was confirmed under Ex. A3 is valid and thereby he got the

title, it confirmed the judgment and decree of the trial Court only on the ground that the defendant got the title by adverse possession. So, the

plaintiffs preferred this appeal.

In view of the above said facts, in this appeal, we have to decide-

whether the lower appellate Court is correct in confirming the judgment and decree of the trial Court holding that the defendant had prescribed

title by adverse possession though no sufficient pleadings and evidence are available?

The lower appellate Court categorically found that the Court auction sale in favour of the said Ghanaprakasam held in E.P. No. 335/1964 in

O.S. No. 33/1960, which had been confirmed under Ex. A3 is valid and thereafter Lakshmiah Chetty, who is the purchaser of the suit property in

the subsequent Court auction sale, cannot get any right in the suit property under the guise of second Court auction sale. While considering the

other aspect, namely, the title by adverse possession, the lower appellate Court confirmed the judgment and decree of the trial Court only on the

ground of long possession of the suit property by the defendant.

Of course, the defendant, in paragraph 12 of the written statement vaguely stated that ""on any account the defendant and his vendor are in lawful

possession and enjoyment of the same from the date of the delivery of the schedule property through Court on 14-3-1966 and had accrued their

title by adverse possession and that the plaintiffs have no right over the same."" The defendant as D.W. 1 has not even deposed regarding his title

on the basis of adverse possession. Absolutely there is no evidence on the basis of adverse possession.

Further, the lower appellate Court failed to apply its mind as to the principle laid down in various judgments to accept the title claimed on the

basis of adverse possession. Except the vague averment raised in the written statement as stated above, there is no iota of pleadings and evidence

to show that the defendant had admitted the title of the plaintiffs or their predecessors-in-title. Further, it is categorically held in various decisions

that mere possession will not be sufficient to constitute adverse possession. The presence of animus to hold hostile title is necessary and to establish

the same, there must be specific pleading and evidence. But, in this case, both the above requirements are lacking. But the lower appellate Court

has not even looked into the evidence of D.W. 1, before coming to the conclusion that the defendant had acquired title by adverse possession.

Hence the lower appellate Court is not correct in confirming the judgment of the trial Court while reversing the finding on the other aspect, namely,

regarding the right in the suit property got by the said Gnanaprakasam in the Court auction sale.

In view of the above, the portion of the judgment of the lower appellate Court on adverse possession is set aside, and, in view of the findings

given by the lower appellate Court that the Court auction sale confirmed in favour of Gnanaprakasam alone is valid and the Court auction sale in

favour of the said Lakshmiah Chetty, who is the vendor of the defendant cannot be held valid, the plaintiffs are entitled to the decree as prayed for.

Accordingly, this second appeal is allowed. No costs.