The burden of proof is on the defendants to establish adverse possession, and clear evidence and intention to possess are essential in adverse possession cases.

1. This second appeal is focussed by the plaintiff, animadverting upon the judgment and decree dated 29.06.2004 passed by the learned Principal Subordinate Judge, Villupuram in A.S.No.95 of 2003 confirming the judgment and decree dated 01.02.2002 passed by the learned II Additional District Munsif, Tirukoilur, Villupuram District in O.S.No.26 of 1998.

2. The parties are referred to here under according to their litigative status and ranking before the trial Court.

3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

a] The plaintiff filed the suit for recovery of possession of the "B" Scheduled property found set out in the plaint.

b] The third defendant filed the written statement resisting the suit and it was adopted by D1 and D2.

c] Whereupon issues were framed. On the side of the plaintiff, the plaintiff examined herself as P.W.1 and Exs.A1 to A8 were marked. The first defendant/Subhan Sahib examined himself as D.W.1 along with D.W2 and marked Exs.B1 to B17 and the Court documents Exs.C1 to C3.

d] Ultimately the trial court dismissed the suit, as against which, appeal was filed by the plaintiff for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court.

4. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been filed by the plaintiff on various grounds inter alia to the effect that there was no enough evidence for invoking the concept adverse possession or prescriptive title. However, both the courts below erroneously held as though the defendants acquired prescriptive title by adverse possession over the B scheduled property based on certain tax receipts, which are not unerringly pointing out to the fact as to when the defendants raised construction in the 'B' scheduled property.

5. Accordingly, in the memorandum of second appeal, suggesting as many as six substantial questions of law, the plaintiff has filed this second appeal. Based on that, my learned predecessor at the time of admitting the second appeal, framed the following substantial questions of law.

1. Whether the courts below erred in law in adjudicating on the point of adverse possession in this case, especially when the lower appellate court having held that the disputed construction had been raised six years earlier, i.e., 6 years prior to the date of suit - 05.01.1998?

2. Whether the trial court erred in law in framing an additional issue as issue number six in the absence of such a plea by the defendants to that effect?

3. Whether the courts below erred in law in dismissing the suit while having found the title of the plaintiff in the A schedule property which covers the B schedule property also?

4. Whether under law, is it open to the defendants to plead adverse possession, having set up title in themselves in respect of B schedule property?

(extracted as such)

6. Heard both sides.

7. The learned counsel for the plaintiff would advance his arguments, the gist and kernel of it would run thus:

On the plaintiff's side positive evidence was let in to show that the concerned construction was made in the B scheduled property only during the year 1990. The tax receipts relied on by both the courts below, by no stretch of imagination should be construed as documents evincing and evidencing that the defendants raised construction in the trespassed area during 1985-86 or even before that. There should have been positive evidence to display and demonstrate that over 12 years, the defendants were enjoying the suit property, openly, uninterruptedly and adverse to the interest of the plaintiff as owner but there is none. As such, in the absence of such evidence, the judgments passed by the courts below are liable to be set aside resulting in decreeing of the original suit in toto.

8. Piloting the arguments on the side of the defendants' side and