The establishment of title and failure to prove right to possession are crucial in determining entitlement to recovery of possession.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 12.03.2021 made in A.S.No.56 of 2018 on the file of the learned Additional Subordinate Court, Pudukkottai reversing the judgment and decree passed in O.S.No.15 of 2007 dated 05.08.2016 on the file of the District Munsif Court, Pudukkottai and allow the second appeal.)

1. The defendant is the appellant.

2. The plaintiff filed O.S.No.15 of 2007 before the District Munsif Court, Pudukkottai for recovery of possession of the suit schedule property. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.56 of 2018 before the Additional Subordinate Court, Pudukkottai. The learned Subordinate Judge was pleased to allow the appeal and decreed the suit as prayed for. As against the same, the defendant has filed the above second appeal.

3. The plaintiff had contended that the suit schedule property and other adjacent properties are the ancestral properties of one Vasudevan, S/o.Arumugapathar. The said Vasedevan was allotted the suit schedule property as per the partition decree in O.S.No.82 of 1950 on the file of Sub Court, Tanjore. According to the plaintiff, the defendant was a tenant under the said Vasudevan from the year 1993 onwards for a monthly rent of Rs.150/-. The said Vasudevan had borrowed a sum of Rs.9,000/- from the defendant and the defendant had been in possession and enjoyment of the suit schedule property in lieu of interest for the said said amount of Rs.9,000/-. To secure the repayment of the said Rs.9,000/-, the said Vasudevan had obtained a document on 07.05.1995. Though the Vasudevan was ready to repay the sum of Rs.9,000/- and insisted the defendant to deliver back the possession, the defendant refused to do so.

4. The plaintiff further contended that the defendant had instituted O.S.No.436 of 2004 before the Principal District Munsif Court, Pudukottai for the relief of permanent injunction as against the said Vasudevan and the husband of this plaintiff in respect of the suit schedule property claiming that he has acquired title by adverse possession from the said Vasudevan. In the said suit, the defendant had further pleaded that he is in possession of the suit schedule property originally as a lessee but later became an usufructuary mortgagee.

5. The trial Court in O.S.No.436 of 2004 found that the said Vasudevan is the owner of the suit schedule property and the defendant is in possession of the same based upon an unregistered Othi deed. Since the defendant is in settled possession, the trial Court granted a decree in favour of the defendant herein (plaintiff in the said suit) that he should not be evicted unless by due process of law. The said decree was passed on 07.04.2006.

6. The present plaintiff has purchased the suit schedule property from the said Vasudevan on 26.10.2004 under Exhibit A4 sale deed. Based upon the said sale deed, the plaintiff had filed the suit for recovery of possession from the defendant.

7. The defendant filed a written statement disputing the title of the plaintiff's vendor namely Vasudevan. The defendant further contended that the observation made in O.S.No.436 of 2004 as against the present defendant will not operate as res judicata. He further contended that the observation made in O.S.No. 436 of 2004 with regard to the legal character of the person in possession of the suit schedule properties are not binding upon the defendant. The defendant further contended that Exhibit A1 othi deed is an unregistered document and the same is inadmissible in evidence. Hence, he contended that no right would flow through the said document. Therefore, the present suit for recovery of possession is not maintainable. Hence, he prayed for dismissal of the suit.

8. The trial Court after considering the oral and documentary evidence, arrived at a finding that the suit schedule properties are natham properties. The trial Court also arrived at a finding that the title of the plaintiff'