Onus to prove lies on the person cleaining adverse possession.

The defendant who lost before the lower appellate court is the appellant herein.

2. The respondent herein/ plaintiff filed a suit in O.S. No.159 of 1978 on the file of the District Munsif of Kallakurichi against the appellant/defendant herein, praying for a declaration and injunction. Briefly it is the case of the plaintiff that the suit properties are the ancestral properties of the plaintiff and that he and his father have been in possession of the properties for the past 30 years. The plaintiff also claimed that he has acquired prescriptive title to the suit properties. According to the plaintiff the defendant has no right for possession of the suit properties and that as the defendant attempted to trespass into the suit properties from 7. 1978, he filed the present suit.

3. The defendant filed a written statement contending that the plaintiff is not entitled to the entire suit properties nor he is in possession as claimed by him. According to the defendant, the plaintiff ‘s father Marudhaiyan has sold an extent of 2 acres, 44 cents out of the suit properties viz., an extent of 4.46 acres comprised in four survey numbers. It is the further case of the defendant that his father purchased defined portions under a sale deed dated 22. 1946 and marked as Ex.B-3 in the suit. It is the further case of the defendant that during his absence at Ceylon, the plaintiff as his relative was looking after the properties and that being so, the plaintiff cannot now turn round and claim any adverse title. On the above pleadings, the defendant prayed for the dismissal of the suit.

4. The trial court framed as many as five issues and out of which issue Nos.1 to 3 may be relevant for the purpose of the discussion in this appeal. Those three issues are as follows:

1. Whether the plaintiff is entitled to the entire suit property?

2. Whether the plaintiff is entitled to the relief of injunction?

3. Whether the plaintiff is estopped from claiming the title to the entire property? The trial court accepted the case of the defendant that the defendant’s father purchased 2 acres 44 cents from the plaintiff s father Marudhaiyan under Ex.B-3 out of the total extent of the suit property i.e., 4.46 acres. The trial court relying on the evidence of D.Ws. 1 and 2, Exs.B-2 and B-3 held that the plaintiff is not entitled to the entire suit properties and the plaintiff is not entitled to the relief of injunction. The trial court further held that in view of Ex.B-3 the plaintiff is estopped from claiming title to the entire suit properties and that the cause of action alleged is not true. Aggrieved by the judgment of the trial court, the respondent/ plaintiff filed an appeal in A.S. No.160 of 1989 on the file of the Subordinate Judge of Vridhachalam and the learned Sub-Judge framed two issues for consideration viz., (1) Whether the permissive possession pleaded by the defendant is true and (2) Whether the plaintiff has acquired title by adverse possession? The learned Sub-Judge held that the defendant has admitted the possession of the suit properties by the plaintiff and that the defendant has not proved his case that the plaintiff is in permissive possession. The lower appellate court further held that the plaintiff has proved continuous possession for more than the statutory period and that the rev- enue documents viz., patta for the suit properties also stands in the name of the plaintiff and in these circumstances, the plaintiff s case of adverse possession of the suit properties is proved. The lower appellate court consequently allowed the appeal and decreed the suit of the plaintiff as prayed for.

5. The unsuccessful appellant/ defendant has filed the above appeal before this Court. The appeal was admitted with reference to two questions of law viz.,

1. Whether the lower appellate court was right in upholding the plaintiff s title by adverse possession, when such an issue was not at all raised in the trial of the suit and the defendant h