For claiming title by possession proof of actual possession necessary.

The plaintiff is the appellant. He filed a suit for declaration of his title to the suit properties and for recovery of possession of the same from defendants 1 and 2. His case was that he had purchased the suit property from one Govindammal under the sale deed Exhibit A-1 dated 4th September, 1965, who had in turn got the property from her paramour, Munuswami Naidu, under a will dated 20th December, 1935, and that his vendor Govindammal had been in possession and enjoyment of the property on the basis of the said will. It is also the plaintiff’s case that taking advantage of the sale deed executed by Govindammal’s elder son Ethiraj in their favour under Exhibit B-6 dated 19th August, 1961, the defendants have entered into possession of the property and have put up structures thereon and that therefore he was constrained to file the suit for recovery of possession.

2. The defendants resisted the suit contending that their vendor Ethiraj got the suit property from his father Munuswami Naidu, that under Exhibit B-6 he had conveyed his interest in the suit property to them, and that ever since the date of Exhibit B-6 they are in possession of the properties.

3. The trial Court accepted the plaintiff’s case that the suit properties originally belonged to Munuswami Naidu, that later the same has been bequeathed to Govindammal under the Will dated 20th December, 1935 and that therefore, the plaintiff has acquired valid title under the sale deed Exhibit A-1 executed by Govindammal in his favour. In that view, it decreed the plaintiff’s. suit.

4. On appeal, the lower appellate Court however, took a different view. It also agreed with the trial Court that Munuswami Naidu had executed a will in favour of Govindammal on 20th December, 1935, but as the original of the will had not been produced into Court and the explanation for non-production of the original will given by the plaintiff and his vendor Govindammal (P.W. 2) was far from satisfactory, and that, therefore, the plaintiff was not entitled to let in secondary evidence regarding the terms of the will. The lower appellate Court, therefore, felt that the terms of the will not having been proved, the plaintiff has not proved his vendor’s title to the suit property by virtue of the will said to have been executed by Munuswami Naidu on 20th December, 1935. Having held that the plaintiff has not established his title, to the suit property through Govindammal the lower appellate Court dismissed the plaintiff’s suit.

5. In this second appeal, it is urged on behalf of the appellant that the lower appellate Court has not properly considered the evidentiary value of Exhibits A-6 and A-7 the sale deeds executed by Govindammal, plaintiff’s vendor, in relation to the other properties wherein reference has been made to the existence of the will dated 20th December, 1935, executed by Munuswami Naidu. As already stated the lower appellate Court has proceeded on the basis that Munuswami Naidu had in fact, executed the will dated 20th December, 1935. But the real question is whether under the will the suit property has been bequeathed to Govindammal. The mere proof of the existence of the will cannot automatically lead to the conclusion that Govindammal got the suit property under the said will. Unless the terms of the will had been proved either by producing the original or by secondary evidence, Govindammars title to the suit property cannot be upheld.

6. The learned Counsel for the appellant also says that the lower appellate Court has not considered the evidentiary value of Exhibits A-8 and A-9 which are chitta extracts for Fasli 1373 and Fasli 1374 showing the enjoyment of the suit properties by the plaintiff’s vendor Govindammal and that her enjoyment of the suit properties can only be on the basis that she got the property under the will in question. But having regard to the fact that Exhibits A-8 and A-9 have come into existence long after Govindammal’s son Ethiraj had executed the sa