Person in possession on basis of lawful title cannot show that his possession is hostile to anothers title.

1. The plaintiff who succeeded before the trial court in getting the decree against the defendants and failed before the lower appellate court, has filed the above second appeal.

2. The plaintiff/appellant filed a suit in O.S.No.302 of 1981 on the file of the Sub Court, Dindigul for partition and separate possession of her half share in the plaint ‘A’ and ‘B’ schedule properties and for damages for use and occupation from the defendants 3 to 5 and 7 to 9. According to the plaintiff, the suit properties originally belonged to the plaintiffs father late Arumugam Pillai who died on 1.8.1956 intestate leaving his wife Pappathi Ammal, the plaintiff and the first defendant as his legal heirs. The other defendants are the alienees of the first defendant. The said Pappathi Ammal died on 29.6.1973. According to the plaintiff, after the death of Arumugam Pillai, the suit properties devolved on his heirs, namely, Pappathi Ammal, the plaintiff as his daughter and the first defendant as his son, each entitled to l/3rd share. The plaintiff has further submitted that the said Pappathi Ammal executed a will dated 9.1.1973 in favour of the plaintiff in respect of half share in the first item of the plaint ‘A’ schedule properties.

3. The defendants 3, 4,1 and 8 contested the suit contending that the said Arumugam Pillai died long prior to 1.8.1956 and so the provisions of Hindu Succession Act and the Hindu Womens Right to Property Act do not apply. As the first defendant is the only son of late Arumugham Pillai, he inherited the plaint ‘A’ and ‘B’ schedule properties and enjoyed the same by transferring the patta in his name. The defendants denied that the suit properties were in joint possession and enjoyment of late Pappathi Ammal, the plaintiff and the first defendant. They have also denied the execution of the will executed by Pappathi Ammal in favour of the plaintiff. The trial court accepting the case of the plaintiff/appellant passed a preliminary decree for partition and separate possession of l/4th share in the first item, 2/8th share in items 2 to 6 of the plaint ‘A’ schedule property and 1/4th share in the plaint ‘B’ schedule property and for recovery of mesne profits also. Aggrieved against the same, the defendants 3, 4, 7 and 8 filed appeal in A.S.No.48 of 1985 on the file of the District Court, Madurai North atDindigul. The lower appellant court held that the defendants 3, 4, 7 and 8 have prescribed title to plaint items 1 and 2 of ‘A’ schedule property, and, on that basis it held that the plaintiff cannot have any share much less l/4th share in the said items, and consequently modified the decree of the trial court, negativing the plaintiffs claim in regard to item 1 and 2 of the plaint ‘A’ schedule property. Aggrieved by the said judgment and decree, the plaintiff has filed the above second appeal.

4. In this second appeal we are concerned only with respect to items 1 and 2 of the plaint ‘A’ schedule property, which items were denied to the plaintiff on the ground that the defendants 3, 4, 7 and 8 had prescribed title by adverse possession. Since I have to assess the correctness of the said judgment and decree of the lower appellate court, I am not going into the other facts. It is not in dispute that these defendants 3, 4, 7 and 8 derived title from the first defendant under the sale deeds. The plaintiff/appellant claims right in the said property both as a heir of Arumugam Pillai and also on the basis of the Will alleged to have been executed by Pappathi Ammal on 9.1.1973. But the courts below have concurrently disbelieved the same. Against the said finding, there was no appeal before the lower appellate court by the plaintiff.

5. To substantiate the case of the appellant/plaintiff that the defendants cannot prescribe title by adverse possession when the plaintiff is also a co-owner of the property, it is submitted by the learned counsel appearing for the appellant that, even if the defendants can claim such title, i