Adverse possession cannot be claimed when ownership based on title is pleaded, and mere possession for any length of time does not lead to adverse possession.

The plaintiff is the appellant. The suit is filed in O.S. No.80 of 1993 on the file of Sub Court, Ramanathapuram seeking declaration and permanent injunction. The case of the plaintiff in a nutshell is as follows.

2. The suit property originally belonged to one Sonaimuthuservai. In pursuant to the partition deed dated 14.05.1970 which is marked as Ex.A2, the suit property was allotted to one of his son by name Balu. The said Balu has executed a registered mortgage in favour of the plaintiff in Ex.A3 dated 27.07.1971. As per the said mortgage deed the plaintiff is entitled to enjoy the income arising out of the suit property in lieu of the interest to the paid by the said Balu. Thereafter a sale deed has been executed by the said Balu in favour of the plaintiff in Ex.A.1 dated 11.06.1975. According to the plaintiff Ex.A4 to E.A36 would show that the plaintiff is in possession and enjoyment of the same as a owner. Since the wife and minor children of Balu have sold the suit property in favour of the defendant under Ex.B5 the plaintiff was constrained to file the suit based upon the title and adverse possession and consequential permanent injunction.

3. The case of the defendant is as follows.

It is true that the said Balu has executed a settlement deed in favour of his wife and his minor children under Ex.B3. Thereafter, the defendant has purchased the suit property from the wife and children of Balu under Ex.B5. Hence according to the learned counsel that in pursuant to the said sale deed he is the absolute owner of the suit property and therefore the suit will have to be dismissed.

4. Before the Trial Court the plaintiff has examined two witnesses in support of his case and marked Ex.A1 to Ex.A61. The defendants has examined three witnesses in support of his case and marked Ex.B1 to Ex.B4. The Trial Court has dismissed the suit by holding that the settlement made by the said Balu in favour of his wife and minor children is an irrevocable settlement deed. The Trial Court has also observed that ex.B5 clearly says that the executor of the document namely the Balu has no right to change or cancel the settlement deed. The Trial Court has further held that therefore the position of the plaintiff is only the mortgagee and mere possession of the suit property will not help his case.

5. Being aggrieved against the same the plaintiff has preferred the present appeal. The learned counsel for the appellant submitted that, on perusal of Ex.A3 to Ex.A36 the plaintiff is in possession beyond the statutory period and therefore the Court below ought to have decreed the suit. According to the learned counsel that the settlement has not been acted upon since no attempt has been made to change all the records in the name of the vendors of the document. It is further submitted that the Court below has not even looked into the contention of the appellant regarding the adverse possession and no issue has been framed for the same. The learned counsel has also submitted that in as much as settlement deed having been cancelled by the said Balu the suit is liable to be decreed.

6. The learned counsel for the respondent submitted that Ex.B3 being a registered settlement deed which is irrevocable, the unilateral cancellation of the said document by Balu under Ex.A57 dated 14.03.1975 will not have the sanction of law. It is further submitted that it is not necessary that possession would be handed over while making gift more so when the document is executed by the donor by referring to the mortgage and having title to the suit property. According to the learned counsel that the plea of adverse possession and title based upon document cannot go together and therefore the Trial Court has rightly dismissed the suit.

7. I have heard the learned counsels for the appellant as well as the respondent. It is seen from the records that the settlement deed has been executed by mere appeal in favour of the vendors of the defendant under Ex.B3. The settlemen