The plaintiff must establish their own title by producing sufficient evidence, and in the absence of establishment of plaintiff's own title, the plaintiff must be non-suited.

JUDGMENT

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 05.03.2004 passed in A.S.No.19 of 2003 on the file of the Principal Subordinate Judge, Tindivanam, reversing the Judgment and Decree dated 30.11.2001 passed in O.S.No.420 of 1995 on the file of the District Munsif cum Judicial Magistrate, Vanur.)

1. Challenge in this second appeal is to the Judgment and Decree dated 05.03.2004 passed in A.S.No.19 of 2003 on the file of the Principal Subordinate Judge, Tindivanam, reversing the Judgment and Decree dated 30.11.2001 passed in O.S.No.420 of 1995 on the file of the District Munsif cum Judicial Magistrate, Vanur.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. The plaintiff is the appellant herein.

3. In the suit for declaration of the title and possession, the plaintiff could succeed only on the strength of his own title by reducing sufficient evidence and even if the title set up by the defendant is found against, in the absence of establishment of plaintiff's own title, the plaintiff must be non-suited. This is the legal position as reiterated in the case of Union of India and others vs. Vasuki Cooperative Housing Society and others reported in AIR 2014 SC 937.

4. Whether the plaintiff has discharged this burden, was the issue to be decided. The trial court has held that the plaintiff is entitled to declaration and injunction but the First Appellate Court set aside the judgment and decree of the trial court and the suit came to be dismissed. Challenging the same, the appellant has preferred the Second Appeal.

5. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:

“(i).Whether the lower appellate Court is justified in dismissing the suit when the right of the appellant to the portion of the suit property is admitted?

(ii).Whether the lower appellate Court ought not to have applied the principle of roster, especially when the defendant has not produced any records to show that the predecessor in title had ever been in enjoyment of the property?

(iii) Whether the lower appellate Court had not failed to appreciate that the defendant had failed to prove his rights over the suit property through Sundaraj and it have not seen that the non examination of the Sundaraj is fatal to the case of the defendant?”

6. Heard the learned counsel for the appellant and the learned counsel for the respondent.

7. The suit property is an extent of 1.006 acres located in S.No.350/5A. The property was originally belonged to one Periyasamy Gounder. He had two sons, viz., Chinna Gounder and Govinda Gounder. Chinna Gounder died leaving behind his wife and two sons. He died in the year 1953. Oral Partition is pleaded in which suit property is said to have been allotted to Govinda Gounder and property in R.S.No.390/4 is allotted to Periyammal, who is the wife of Chinna Gounder.

8. Plaintiff claims title by way of purchase on 04.02.1993 from one Arumugam Gounder (tracing title through Govinda Gounder). The plaintiff claims that she had been in continuous possession and enjoyment of the property as a owner by possession. The plaintiff has obtained title by adverse possession also. As the defendant was claiming title and enjoyment of the property, the suit for declaration was filed by the plaintiff.

9. While disputing the title of the plaintiff, the defendant claimed that the suit property originally belonged to Govinda Gounder and the legal heirs of Chinna Gounder. The oral partition took place only after the sale of the property in R.S.No.390/4 and that the sale was by the two families together. In the partition, the suit property measuring an extent of 0.53 cents was given to Sundararajulu the branch of Chinna Gounder. The western portion measuring an extent of 0.53 cents was allotted to legal heirs of Govinda Gounder. Sundararajulu sold his share of 0.53 cents to Anjalaiammal