The principle of nemo dat quod non habet applies, emphasizing the burden of proof on the plaintiff to establish title in a property dispute.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the decree and judgment made in AS No.24 of 2010 dated 30.10.2013 passed by the Subordinate Judge, Ariyalur, by reversing the decree and judgment in O.S.No.133 of 2001 dated 19.01.2010 passed by the District Munsif Court, Jayankondam.)

1. The defendant is the appellant in this Second Appeal.

2. The respondent/plaintiff filed a suit seeking for the relief of declaration of title and permanent injunction with respect to the 1st item of the suit property and for the relief of mandatory injunction with respect to the 2nd item of the suit property.

3. The case of the plaintiff is that his mother Povunammal, purchased a property measuring an extent of 5½ cents on 3.6.1972 from one AzhagaPadayatchi and this document was marked as Ex. A1. The further case of the plaintiff is that the property was measured with the boundaries described in Ex.A1 document and it was found that the total extent of the property was 9 cents. Thereafter, the plaintiff purchased the excess 3½ cents in Survey No. 246/1 from the legal heirs of Mottayapadayatchi on 13.11.1997 and this document was marked as Ex.A2.

4. The further case of the plaintiff is that the defendant had purchased 6 cents through sale deed dated 5.6.1985, marked as Ex.B1 in SF No.246/2, but, however the Survey Number was wrongly mentioned as SF No. 246/1. Taking advantage of the same, the defendant attempted to encroach upon the property of the plaintiff and construct a house. He also proceeded to put up a thatched shed and was running a cycle shop in the 2nd item of the suit property and was preventing the access of the plaintiff. Left with no other option, the suit was filed seeking for the reliefs mentioned supra.

5. The case of the defendant is that the plaintiff could not have purchased 3½ cents in Survey No. 246/1 since the vendor did not have any right to convey this extent to the plaintiff. The further case of the defendant was that he had purchased 6 cents in SF No. 246/1 through Ex.B1 sale deed from one Moorthy, Gopalaswami and Ponnuswami. Thereafter, the property was sub-divided as 246/1 C2 and a separate patta was also issued in the name of the defendant in the year 1994. Thus, the defendant claimed that he is in possession and enjoyment of the property purchased by him. He alleged that it was the plaintiff who attempted to encroach upon his property and had constructed a bathroom and erected bore well and also installed dish antenna and hence the defendant has filed an independent suit in O.S. No. 153 of 2001 for recovery of possession. Thus, the defendant sought for the dismissal of the suit.

6. The Trial Court, on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, partly decreed the suit by rejecting the claim for declaration of title and mandatory injunction and by allowing the claim of permanent injunction sought for by the plaintiff. Aggrieved by the same, the plaintiff filed an appeal before the Sub Court, Ariyalur, in A.S. No. 24 of 2010 and the defendant filed a Cross-Appeal before the same Court being aggrieved by the grant of permanent injunction in favour of the plaintiff. The Lower Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court was pleased to allow the appeal filed by the plaintiff and dismissed the Cross-Appeal filed by the defendant through a Common Judgment dated 30.10.2013. Aggrieved by the Judgment made in A.S. No. 24 of 2010, the present Second Appeal has been filed by the defendant.

7. When the Second Appeal was admitted, the following substantial question of law was framed for consideration:

Whether the Lower Appellate Court was right in granting decree for declaration of title, when the four boundaries of Ex.A1 and Ex.B1 indicate that there was no property left behind at the hands of the vendors of the plaintiff, in turn, the p