High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE A. SUBBULAKSHMI
Ganapathi Iyer and another
Versus
Sundaramurthy and others
A.S.No.347 of 1988 and A.S.No.213 of 1990
Decided On : 17-04-2000
(B) Adverse possession - Burden of making out ouster is on the person claiming adverse possession---To constitute ouster, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of all the other co-heirs.
Defendants 1 and 2 in O.S.No.12 of 1983 are the appellants in A.S.No.347 of 1986.
2. The case of the plaintiffs is as follows:
The first plaintiffs great great grand father Kandasami Aiyya belonged to Kandanpalayam. He came to Chidambaram more than two hundred years back and occupied a portion of A schedule item No.1 of the suit property. The suit property was originally a waste land. Be built cottage and cultivated dry crops therein. Kandasami Aiyya was a pious and religious man. He belonged to Veerasaivam (lingayath). He was preaching Lingayath and he was residing therein. He had only son by name Vaithilinga Aiyya. After the death of Kandasami Aiyya, his son Vaithilinga Aiyya improved the place. He buried his father in the said place, built a samadhi, put up a lingam in the said place for his worship and called it as Adhilingam. He also built a well to supply water for irrigation purposes to the garden. He planted trees and formed flower garden and vegetable garden. He also served as poojari and had additional earnings. He got assignment of the lands in his favour and Vaithilinga Aiyya helps for his family. His only son was Apparswami Aiyya. He succeeded to item No.1 of the A schedule property. He was well versed in Tamil and Sanskrit and he had many devotees and disciples. He served as Gurukkal in many temples. He was also a mandhirik. He taught mandhirik to his disciples. He had clients all over India and he had large earnings out of the same. He built many of the buildings in item 1 of A schedule property. Patta was also transferred for item 1 of the property in his favour. He also acquired item No.2 of the A schedule property and got assignment in his favour. The said place is now being used to bury the family members. A portion of item No.2 of the A schedule property was converted as nanja land. Since he was a mandhirik, he built four buildings in the suit place for his residence and to accommodate his visitors. He installed deities and put up a Sabha Mandapam in the suit place. He also installed idols referred to in the B schedule in the Sabha Mandapam. He also purchased 2 ¼ kani of nanja lands at Thillainayagapuram later on sold by the plaintiffs and defendants 1 and 2 on 17. 1981. Apparswami Iyer died in the year 1950. After his death his two sons Devasenathipathi Aiyar and Somasundaram Aiyya succeeded to the suit properties and were residing in item No.1 of A schedule property. They also enjoyed the suit properties jointly. Devasenathipathi Aiyyar died in the year 1956 leaving his two sons by name Vaithinatha Iyer and Panchanatha Iyer the first plaintiff. Vaithinatha Iyer died in the year 1952 without any issues. Somasundaram Aiyar also died in the year 1966 leaving his son Ganapathi Aiyar the first defendant. The second defendant is the son of the first defendant. The first plaintiff died. Plaintiffs 2 to 5 sons of the first plaintiff and brought as his legal representatives. The plaintiffs family and defendants 1 and 2 are residing in the suit item No.1 of A schedule property and they are in enjoyment of the suit properties jointly. They are performing poojas for the deities and samadhi jointly. The suit properties are now in joint possession and enjoyment of the plaintiffs and defendants 1 and 2. The first plaintiff and the first defendant jointly built up the brick built compound wall all round the suit property in item 1 of A schedule. The building bearing door No.11-A, 12, 12-A are put up by the tenants on a contract basis and as per the agreement after the stipulated contract period the same vest with the plaintiffs and defendants 1 and 2 for they had enjoyed the suit property as per the contract. Defendants 3 to 13 are the tenants and they are in occupation of the building on contractual basis. The ownership vests with the plaintiffs and defendants 1 and 2 after the contract period. Defendants 14 and 15 are cultivating dry crops and nanja lands respectively. The plaintiffs, legal heirs of one group
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