Defendants must prove adverse possession and ouster to succeed in property dispute - Possession by co-owner does not constitute adverse possession - Estoppel requires clear evidence of denial of title by adverse possession

Marappa Gounder, the plaintiff is the appellant herein. Ramalingam and Nataraja Gounder, the defendants are the respondents herein.

2.The plaintiff filed the suit for partition and separate possession of his half share in the suit property, contending that the same was purchased from the brothers of the defendants. The suit was decreed by the trial Court. However, the lower appellate Court, in the appeal filed by the defendants, set aside the judgement and decree of the trial Court and the suit was dismissed, upholding the contention of the defendants that they are in adverse possession. Challenging the same, the plaintiff has filed the second appeal before this Court.

3.The case of the plaintiff is as follows:-

The suit property is an extent of 3.06 acres in S.No.490-C, situated in Kolanalli Village. The suit property originally belonged to two brothers, by name, Seeranga Gounder and Muthusamy Gounder. Sellakumaraswamy Gounder is the son of Seeranga Gounder. Ramalingam and Nataraja Gounder, the defendants, are the sons of Muthusamy Gounder. After the death of Seeranga Gounder and Muthusamy Gounder, Sellakumaraswamy Gounder and the defendants partitioned the property through a registered partition deed/Ex.A-2, dated 4-6-1952. As per this deed, half share in S.No.490-C was allotted to Sellakumaraswamy Gounder and the other half share was allotted to the defendants--Ramalingam and Nataraja Gounder. Even after the partition, the property was enjoyed in common. On 27-7-1974, Marappa Gounder, the plaintiff purchased half share under Ex.A-1 from Sellakumaraswamy Gounder. Even after the purchase, the suit property was enjoyed by the plaintiff along with the defendants 1 and 2 in common. Since the plaintiff felt that it was no longer possible for him to enjoy the property in common, he demanded partition through notice and since there was no response, the plaintiff filed the suit for partition of the half share and separate possession.

4.The case of the defendants is as follows:-

The plaintiff's claim that he had purchased the common half share in the suit property from Sellakumaraswamy Gounder by the sale deed dated 27-7-1974, is incorrect. The property comprised in S.No.490-C was in enjoyment of two other persons, by name, Ramasami Gounder and Periasamy Gounder. Originally, the defendants were in possession of S.No.490-B belonging to the abovesaid persons. By oral sale, the defendants purchased half share in S.No.490-B, but actually possession was given only in S.No.490-C. In 1957, there was an exchange between the defendants 1 and 2 on the one hand and Sellakumaraswamy Gounder, the vendor of the plaintiff, on the other, by which, the vendor of the plaintiff obtained half share in S.No.490-B from the defendants 1 and 2 and in lieu thereof, he gave his half share in S.No.490-C, and thereby, from the year 1957, the defendants had become entitled to the entire extent of S.No.490-C. From then onwards, the defendants have been in exclusive possession and enjoyment of the suit property. At any rate, the defendants have perfected title by adverse possession and ouster. In the year 1974, the plaintiff's vendor had no subsisting right over the suit property and therefore, no title could be passed on to the plaintiff through the sale deed. Earlier, a suit has been filed by the plaintiff against the defendants and the vendor/Sellakumaraswamy Gounder. The plaintiff's vendor had recognised absolute right on the defendants, and therefore, the plaintiff's vendor and the plaintiff are estopped from putting forth any claim or right in the suit property. The suit is liable to be dismissed.

5.On the basis of the above pleadings, necessary issues were framed by the trial Court. During the course of trial, the plaintiff examined himself as P.W.1 and through him, Exs.A-1 to A-26 were marked. The first defendant examined himself as D.W.1 and through him, Exs.B-1 to B-30 were marked. The trial Court, on an appraisal of the materials available on reco