Declaration of title cannot be made in bare suit for recovery of possession.

1. The second appeal has been filed by the defendant in O.S.No.53 of 1979 on the file of the District Munsif, Thiruvaiyaru, who succeeded before the learned Trial Judge, but lost before the learned Sub-ordinate Judge at Thanjavur in A.S.No.18 of 1983, challenging the judgment and decree passed by the learned first appellate judge.

.2. The suit has been filed by the respondent / plaintiff f or more recovery of possession as per plaint plan ABCB after removing the shed and fence. The case of the plaintiff is that based on the purchase said to have been made under Ex.A.1 and A2 the defendant contested the claim and disputed the right of the plaintiff for the relief of recovery of possession asserting title in himself by virtue of the sale deed marked as Ex.B2. A commissioner was also appointed and there are more than one report and plan submitted and they were marked as Exs. C1 to C5. Oral and documentary evidence have been adduced on either side and the Commissioner also was examined as Court witness.

3. The learned trial Judge was of the view that the plaintiff’ s documents particularly Ex.A1 and A2 do not relate to the property actually in dispute and he has not shown title to the said disputed property and at any rate, the defendant has by his continuous possession and enjoyment has perfected title and the plaintiff has lost his title by adverse possession. On the above conclusion the suit came to be dismissed.

4. The plaintiff pursued the matter on appeal before the Sub-Court, Thanjavur. The learned Subordinate Judge, Thanjavur, has chosen to re-appreciate the materials on record and came to the conclusion that the plaintiff is the owner of the disputed portion of the property in question and entitled to recovery of possession and the plea of adverse possession has no merit.

.5. Aggrieved against the same, the defendant has filed the above second appeal. The main challenge to the judgment of the learned first appellate Judge in this second appeal as could be seen from the memorandum of grounds of appeal filed in this Court in the second appeal as also the substantial question of law attempted to be formulated is projected on the basis that originally the property belonged to one owner and the same got divided among three sharers and that the first appellate Court could not have preferred the sales in favour of the plaintiff over and above that of the defendant. It is on such submissions made, apparently, the learned Admission Judge, who dealt with the appeal initially formulated the following substantial question of law as arising for consideration in the second appeal.

."Whether the lower appellate Court has misconstrued the evidence regarding the partition pleaded by the appellant and erred in holding that the plaintiff has title to the suit property?"

.6. Heard Mr.K.A. Ravindran, the learned counsel for the appellant and Mr.S. Parthasarathy, learned counsel for the respondent. The learned counsel appearing on either side submitted elaborate and lengthy arguments reiterating repeatedly the same claims and invited my attention to one or other portion of the conclusion and findings arrived at by the respective judges of the Courts below in favour of the respective parties.

7. I have carefully considered the submissions of the learned counsel appearing on either side in the light of the judgments of the Courts below and the conclusion recorded by them. Having regard to the observation found in paragraph 7 of the judgment of the Trial Judge. I looked into the documents Exs.A1 and A2 as also Ex.B2 and the evidence of PW 1 to find out the veracity or correctness of the statements found made and noticed in the judgment of the learned Trial Judge on the basis of those documents. A careful analysis would go to show that the suit for recovery of possession straightaway itself is a misconceived remedy in the facts and circumstances of the case and it was inappropriate also for the learned trial judge as also the