The central legal point established in the judgment is the significance of proving possession under the Kudiyeruppu Act and the importance of documentary evidence in property disputes.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying to set aside the judgment and decree passed in A.S.No.3 of 2009 dated 31.12.2009, on the file of the Court of Principal Subordinate Judge, Mayiladuthurai, confirming the judgment and decree passed in O.S.No.243 of 2003 dated 29.11.2008 on the file of the District Munsif, Sirkali.)

(The case has been heard through video conference)

1. The appellants herein are the defendants in the suit for recovery of possession suffering the decree of the Courts below, the instant second appeal is filed.

2. The case of the plaintiff is that “A” schedule property, consist of two parts. One is 25 cents in S.No.174/3 and another 26 cents in S.No.174/3. It was purchased under two sale deeds dated 05/06/1975 marked as Ex.A-1 and Ex.A-2. Five years prior to the suit, the Power Agent of the plaintiff permitted the defendants to occupy the “B” schedule property, which is 432 sq.ft., with linear measurement of 12x36 ft. for paguthi of Rs 10/- per month. When the plaintiff sought back the property, the defendants refused to vacate. After issuance of termination notice, suit is filed for recovery of “B” schedule property with superstructure and recovery of arrears of paguthi and future profit from the date of suit till the date of delivery of possession.

3. The defendants contested the suit denying rental agreement. They claimed to be in possession and enjoyment of the “B” schedule property in 5½ cents for more than 100 years, much prior to the plaintiff purchased the property in the year 1975. The suit property belongs to the defendants under kudiyirupppu Act and by long years of enjoyment. The standing trees in the suit property were raised by the father of the first defendant. They are living in the “B” schedule property paying the house tax. The tax receipts prior to 1983 got destroyed in fire. Ex.B-2 to Ex.B-9 are the house tax receipts. It has electricity connection for more than 20 years. Ex.B-15 to Ex.B-29 are the Electricity bills. Ex.B-10 is the voter identity card. The sale deeds Ex.A-1 and Ex.A-2 will not bind them. The defendants pegged their case on long occupation and protection under Kudiyeiruppu Act. Besides pleaded the mis-description of the suit property in the plaint.

4. Pending trial, at the instance of the defendants, Advocate Commissioner was appointed and he has submitted his report along with sketch, which were marked as Ex.C-1 and Ex.C-2 respectively. The Commissioner in his report stated that the portion in occupation of the defendants is 8½ cents. The plaintiffs filed application to amend their plaint in respect of the extend of “B” schedule property from 1 cent to 8 ½ cent, but that application was dismissed.

5. The trial Court granted the relief of recovery of vacant possession and dismissed the other reliefs. The defendants preferred appeal before the Principal Subordinate Court, Mayiladudurai in A.S.No.3/2009 and same was dismissed confirming the trial Court judgment and decree.

6. The learned counsel for the appellants submitted that, the Courts below erred in not considering the mis-description of the “B” schedule property is fatal to the plaintiff’s case for recovery of possession. The Courts below failed to properly appreciate the documentary evidence to show the long and undisturbed possession of the property by the defendants. The power agent of the plaintiff alone entered the witness box and not the plaintiff. Therefore, the Courts below ought to have taken adverse notice. The Court fees for recovery of possession is valued and paid only for 1 cent, whereas the relief now granted to the plaintiff is for 8 ½ cents. The Courts below ought not to have granted relief more than what prayed. In this connection, the learned counsel for the appellant relies upon the following judgments of this Court to emphasis, the principle boundaries prevail over the extent is not applicable to cases when there is linear measurements.

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