Adverse possession must be peaceful, open and continous.

JUDGMENT: Aggrieved by the judgment and decree dated 31.3.1993 passed in A.S.No.230 of 1992 by the Additional Subordinate Judge, Cuddalore reversing the judgment and decree dated 12.12.1991 made in O.S.No.825 of 1989 by the District Munsif, Cuddalore, the first defendant has filed the above second appeal.

2. The averments made in the plaint are as follows:

(a) The suit property mentioned in ‘B’ schedule originally belonged to Govindasamy Naidu and his two brothers. In an oral partition, ‘B’ schedule property was allotted to the said Govindasamy Naidu and he was in possession and enjoyment of the same till his death. After the death of Govindasamy, his only son Ramamurthy, who is the husband of the plaintiff, was in possession and enjoyment of the same. The said Ramamurthy also died three years prior to the date of filing of the suit leaving behind his wife and five children. After the death of Ramanurthy, the plaintiff has been in possession and enjoyment of the suit property. The suit property is a vacant site and in a portion of that property, there is a hut, in which the plaintiff has been residing from the date of her marriage, with the knowledge of the defendants and adverse to the defendant for more than the statutory period. The second defendant is the son of Venkatachala Naidu, who was a cousin of Govindasamy Naidu. The first defendant attempted to trespass into the suit property in the third week of March, 1989 alleging that he had purchased the suit property from the second defendant. However, such attempt was successfully thwarted. Hence, the plaintiff filed the suit to declare possessory title to the suit property and for permanent injunction.

3. The averments made in the written statement filed by the first defendant are as follows:

(a) Originally the entire suit property was owned and enjoyed by the father of the second defendant Venkatachala Naidu and his brother. After the death of his brother, whose property was divided into two halves, one half share was in possession and enjoyment of his brother’s wife Mangalammal and daughter Pangajammal and another half-share was in possession and enjoyment of the said Venkatachala Naidu. After the death of Venkatchala Naidu, oral partition was effected among his three sons and the above half share of Venkatachala Naidu was allotted to the second defendant. At the request of the plaintiff’s father-in-law, the above said Mangalammal, permitted him to put up a thatched hut to an extent of two cents for dwelling purpose without proprietary right. Neither the plaintiff nor her husband has any title to the entire suit property. The second defendant sold his share in the suit property to the first defendant on 2.10.1987 for a valuable consideration. From the date of purchase, the first defendant has been in possession of the property by raising various crops.

4. The Second appeal was admitted on the following substantial questions of law:

(a) Whether the lower appellate Court is right in decreeing the suit filed by the first respondent when Exs.A-1 to A-20 filed by her do not at all prove either title or possession over the suit property?

(b) Whether the lower appellate Court is right in holding that the first respondent has perfected title by adverse possession when it was not pleaded and when the document filed by the first respondent was only from the year 1978 and the suit was filed in 1989?

5. The learned counsel appearing for the appellant would submit that originally one Venkatachalam was the owner of the property and thereafter, his son second defendant herein, succeeded to the said property and thereafter, during the course of his enjoyment and possession over the suit property he sold the same to the first defendant.

6. It is contended that the first defendant considering the poor condition and status of the plaintiff, he allowed the plaintiff to put up a hut in the suit property and therefore, the plaintiff is not entitled to claim any title or interest over the suit

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