The main legal point established is that adverse possession by ouster must be specifically pleaded and proved, and entitlement to inherited property should be determined through a separate partition suit.

R. MALA, J.

1. The legal heirs of the plaintiff, who lost the legal battle before both the Courts below have come forward with this second appeal against the judgment and decree of Principal District Judge, Dindigul, in A.S. No. 69 of 2000 dated 25.11.2003, confirming the judgment and decree in O.S. No. 1580 of 1996 on the file of the II Additional District Munsif, Dindigul.

2. The father of the appellants 2 to 5, as plaintiff, filed a suit for declaration of title and injunction restraining the defendants not to interfere the peaceful possession and enjoyment of the suit property in new S. No. 296/1 to the extent of 2 acres 59 cents, within the stated boundaries. The suit property is originally owned by one Duraisamy Servai, son of Pachai Servai, from whom, the plaintiff's mother, who is none other than the mother-in-law of the first defendant viz., Periyakkal @ Karuppayee Ammal, purchased under sale deed dated 02.09.1946. From the date of purchase, she enjoying the property. Periyakkal @ Karuppayee Ammal is having three children viz., Thonthi Servai, Veerasamy Servai and Kulanthai Servai. The first defendant is the wife of Thonthi Servai. Their children are defendants 2 to 5. On 15.07.1968, she sold the same to the plaintiff for a sum of Rs.1,750/-. Even though, in the sale deed, it was stated that the plaintiff had purchased only 1 acre 73 cents, on the date of purchase onwards, he is in possession and enjoyment of the entire property viz., 2 acre 59 cents, openly, continuously and uninterruptedly for more than statutory period with the knowledge of the defendants and one Veerasamy, who is the brother of the plaintiff and his legal heirs and hence, he prescribed title by ouster. Patta has been issued in his name and he has paid kist and also he has developed the property and put up a well and 5 H.P. Motor and raised crops and enjoying the property. No one can claim right over the property. The plaintiff's mother Periyakkal @ Karuppayee Ammal died intestate 15 years back, leaving behind the plaintiff and first defendant's husband Thonthi Servai and Veerasamy Servai as her legal heirs. After her death, no one is claimed title over the property. Both Thonthi Servai and Veerasamy Servai are the attestors of the sale deed in favour of the plaintiff. Now, the defendants, who are the legal heirs of Thonthi Servai claiming title as if the property is inherited and they have 1/3 share and issued notice dated 24.06.1995. Even though reply has been given, they are attempted to interfere the possession of the plaintiff and hence, the plaintiff has constrained to file the suit for declaration and injunction.

3. Resisting the same, the first defendant filed a detailed written statement stating that the property is the ancestral property and the sale deed is not true and genuine. 86 cents has been enjoyed by Thonthi Servai along with the defendants. The plaintiff is entitled only 1 acre 73 cents. In 1995, the plaintiff mortgaged the suit property i.e. 1 acre and 73 cents only. Now, he has filed the false suit. He is entitled only 1 acre 73 cents and hence, he prayed for dismissal of the suit in respect of 86 cents.

4. The Trial Court, after considering the plaint and written statement, framed necessary issues and considering the oral and documentary evidence, decreed the suit in respect of 1 acre 73 cents and dismissed the suit in respect of remaining 86 cents. Against which, the defendants preferred an appeal. The appeal has been dismissed, by confirming the judgment and decree of the trial Court, against which, the present second appeal has been preferred.

5. At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal:-

1. Whether the Courts below ought to have held that the plaintiff had absolute title and possession of the entire 2 acres 59 cents be sale as well as by prescription?

2. Whether the finding of the learned District Judge without to consider the oral evide