Judgment

JAGANNATHA SHETTY, J. :- This appeal by Special Leave has been preferred against the judgment dated August 2, 1971 passed by the High Court of Madras in O.S.A. 37 of 1963 (reported in AIR 1972 Mad 162).

2. The facts briefly stated are

Under Exhibit P. 2 dated May 24, 1929 Nagappa Naicker purchased from Manicka Naicker and his sons nanja lands in old Survey Nos. 187 and 188 (R. S. No. 3859) an extent of about 3/8 cawnie, roughly about 9 grounds for Rs. 275/-. It was recited in the document that the property was not fetching any income, that irrigation from the tank had failed and that as the property was a pit which required Rs. 2,000/- to fill, it was sold for meeting certain family expenses. The boundary of the property was given as north of Government Macleans Garden, west of the fields of Thanappa Naicker and Srinivasa Naicker, south of the field of Srinivasa Naicker, and last of the road, Ramanatha Mudaliars vacant land and Masilamani Gramanis house. It may be noted that the resurvey number was given as 3859.

3. On May 14, 1941 Nagappa died. Jagdambal appellant is the widow of Nagappa. She instituted the suit C. S. No. 52/1960 which was tried on the original side of the Madras High Court. The suit was for recovery of the land purchased under Ex.P2 by her husband, and for mesne profits with other connected reliefs. She alleged that the property was in possession and enjoyment of Nagappa during his lifetime and subsequently in her possession and enjoyment. It was her case that neighbouring land owner South India Education Trust (SIET) trespassed and encroached upon the suit property taking advantage of her helpless condition as a widow. The SIET is the 5th defendant in the suit.

4. We may now trace the title of the adjoining plot of land owned by the SIET. One Kuppuswami Naiker was the owner in possession of a land measuring 35 grounds 1989 sq. ft. This entire land was sold to Rani of Vuyyur for Rs. 10,000/- under Ex.P6 dated July 30, 1940. In the schedule, the property sold was described as R. S. No. 3859/1, 3859/2 and part of 3859/3. The property was also described as bounded on the west partly by Nagappa Naickers land and partly by Mount Road and Duraiswami Gramanis house. According to the sale deed the property sold was only 35 grounds 1989 sq. ft. and it was marked yellow in the plan attached thereto. Under Ex.P7 dated December 24, 1953 Rani of Vuyyur sold the property she purchased under Ex.P6 to SIET. The property was described as bearing R. S. No. 3859/1, 3859/2 and 3859/3 part and 3872 in Teynampet measuring about 38 grounds. In the schedule to Ex.P7 the property was described as lying east of Nagappa Naickers land and Mount Road. It will be seen that though the Rani Vuyyur purchased 35 grounds 1989 sq. ft. the extent mentioned in Ex.P7 was about 38 grounds. On February 11, 1954 the SIET exchanged its land under Ex.P8 with the property belonging to the defendants 1 to 4 in the suit. Ex.P8 recited that the SIET was conveying an extent of 43 grounds 1324 sq. ft. comprised in R.S. Nos. 3859/1, 3859/2 and 3859/3 and 3872 Mount Road, Madras. Here again the land has been described as bounded on the west by Nagappa Naickers land and Mount Road. The curious thing to be noted is about the extent of land exchanged. 38 grounds purchased by the SIET under Ex. P7 has become 43 grounds 1324 sq. ft. in the Exchange deed Ex.P8.

5. The suit was resisted by all the defendants. They contended that the plaintiff has no title to the suit property and the suit was barred by time. They denied the trespass or encroachment alleged by the plaintiff. They set up title in themselves. They particularly contended that the plaintiff was not in possession at any time within 12 years next before the suit.

6. The plaintiff examined in all seven witnesses as against six witnesses by the defendants.

7. The learned single judge after considering the material on record held that Nagappa during lifetime and the plaintiff after Nagapps death had been in