The burden of proof lies upon the plaintiff to establish possession within 12 years when setting up a case of permissive possession, and mere proof of title is not sufficient to shift the burden of proof to the defendant to claim adverse possession.

In S.A.No.1551 of 1997, the first defendant is the appellant. The appeal is preferred against the decree and judgment made in A.S.No.79 of 1996, dated 06.08.1997, on the file of the learned Principal District Judge, Dindigul, modifying the decree and judgment in O.S.No.63 of 1995, on the file of the learned District Munsif-cum-Judicial Magistrate, Vedasandur. The appellants are the Legal Representatives of the first defendant.

2.In S.A.No.1552 of 1997, the plaintiff is the appellant. The appeal is preferred against the decree and judgment made in A.S.No.80 of 1996 dated 06.08.1997, on the file of the learned Principal District Judge, Dindigul, setting aside the decree and judgment made in O.S.No.132 of 1995, on the file of the learned District Munsif-cum-Judicial Magistrate, Vedasandur, dated 29.01.1996. The appellants are the Legal Representatives of the plaintiff.

3.The Suit in O.S.No.63 of 1995 was filed by the respondents 1 & 2 for declaration of title and for consequential injunction regarding the first schedule property in S.No.781/1, for an extent of 4 acres 68 cents and for recovery of possession in the above survey number for an extent of 20 x 10 ft. The suit in O.S.No.132 of 1995 was filed by one Deivanai Ammal for an order of injunction regarding one acre in S.No.781/1-A.

4.As the parties were the same and the said properties were same, both the suits were tried together and a common judgment was delivered by the trial Court on 29.01.1996. For convenience, the plaintiff in O.S.No.63 of 1995 is referred as the plaintiff and the plaintiff in O.S.No.132 of 1995 is referred as the defendant.

5.The brief facts of the case are as follows:-

The plaintiffs have acquired the property in S.No.781/1, an extent of 4 acres 60 cents along with a well by the family arrangement and also by purchase prior to 1974. In the year 1981, the plaintiffs have dug a well and they were enjoying the property by cultivating an extent of 3 acres 68 cents and on the southern side, an extent of one acre land was in a higher level. On the east of S.No.781/1, the defendant Deivanai Ammal was in possession and enjoyment of S.No.781/2. Her land was in the same level of the above said one acre in S.No.781/1. Therefore, the first defendant agreed to irrigate the said one acre in S.No.781/1 from her land and for that purpose ten years back she was permitted to put up a tiled shed to that extent. Therefore, the said Deivanai Ammal had put up a tiled shed in the southern elevated one acre in S.No.781/1 and was irrigating the land through which the plaintiffs are cultivating the above said one acre by raising peanuts. The plaintiffs were given patta for an extent of 4 acres 68 cents in S.No.781/1,. After some time, the first defendant was coming out that she is going to sell her property along with the above said one acre, which belongs to the plaintiffs. Therefore, the suit was filed for declaration that in S.No.781/1, an extent of 4 acre 68 cents belong to him and for recovery of possession of the 2nd scheduled property, where the first defendant has put up a tiled shed on the southern side of S.No.781/1.

6.The suit was resisted by the said Deivanai Ammal, on various grounds.

7.It is stated that the said one acre on the southern side of S.No.781/1 is now sub-divided into S.No.781/1 and 781/1-A. S.No.782/2, which on the further east belonged to her. The defendant was in possession and enjoyment of one acre in S.No.789/1-A for more than 60 years and it was never enjoyed by the plaintiffs and she had put up live fence and she has been enjoying the property as that of her own and she has perfected title by adverse possession also. She had also filed a Suit in O.S.No.132/1995 for a permanent injunction restraining the plaintiff herein from interfering with her possession.

8.Based on the above averments in both the suits and on considering the oral and documentary evidence, the learned trial judge found that the plaintiffs have failed to prove the p