JUDGMENT

S.S. SUNDAR, J.

Prayer: Second Appeal filed under Section 100 of the Constitution of India, to set aside the judgment and decree dated 21.09.2017 made in A.S. No. 45/2017 on the file of the Subordinate Court, Jayankondam, in confirming the judgment and decree dated 13.10.2014 made in O.S. No. 155/2010 on the file of the District Munsif Court, Jayankondam.

1. As against the judgment and decree dated 21.09.2017 of the learned Subordinate Judge, Jayankondam in A.S. No. 45/2017 confirming the judgment and decree dated 13.10.2014 of the learned District Munsif Court, Jayankondam in O.S. No. 155/2010, the defendant in the Suit has come forward with the Second Appeal.

2. The respondent in this Appeal filed the Suit in O.S. No. 155/2010 for declaration of title to the Suit property and for recovery of possession and for cost.

3. The Suit property is described in two items. The 1st item is a land measuring an extent of 0.12.3 hectares in Survey No. 135/7B and the 2nd item is a property measuring an extent of 0.33.0 hectares in S. No. 135/8 in Nayaganai Priyal Village, Udayarpalayam Taluk, Ariyalur.

4. It is the case of the respondent in the plaint that the Suit property was originally purchased by one Chokkalingam Chettiar in the year, 1931. It is further stated that after the death of the said Chokkalingam Chettiar, his three sons got the property and the Suit property was later allotted to the share of one Kumarasamy who is the father of plaintiff.

5. The plaintiff further pleaded that there was a oral partition between himself and his father in the year 1969 and the Suit property was allotted to the plaintiff towards his share. Though it is admitted that at one point of time the property in S. No. 135/7 was in the joint name of plaintiff's father and the father of defendant, the patta was changed pursuant to UDR Scheme giving separate patta for the Suit property 1st item in favour of plaintiff.

6. It is specifically stated that the defendant in the Suit has no right and that an attempt was made by the defendant to encroach the Suit property. Though the Suit was originally filed for declaration of title and for consequential injunction, it is the specific case of plaintiff that an interim application filed by the plaintiff in I.A. No. 701/2010 during the pendency of the Suit was dismissed and that the defendant encroached the Suit property taking advantage of the situation. Hence the plaint was awarded to seek the prayer for recovery of possession.

7. The Suit was contested by the appellant on the ground that the Suit property was purchased by the appellant's father from the plaintiff's father by way of oral sale. It is further stated that the defendant's father was in possession and enjoyment of the Suit property for more than 36 years. It is also stated that the defendant is paying in his name property tax and water tax for the superstructure that was put up in the Suit property.

8. The Trial Court after framing necessary issues specifically found that the Suit property belonged to the plaintiff as he has successfully traced his title based on documents. The Trial Court also given a finding that the defendant has not produced any evidence to establish his title. On the plea of adverse possession, the Trial Court found that the defendant has not proved his possession to be adverse as against the plaintiff and that therefore, the plea of adverse possession cannot be accepted.

9. Since the defendant had pleaded title on the basis of oral sale, the Trial Court also held that the plea of adverse possession is inconsistent with the plea of title. Ultimately, the Trial Court categorically found that the oral sale pleaded by the defendant was not established and that in the absence of any cogent evidence the Court cannot act on the basis of any oral sale as the oral sale would not confer any title to the immovable property.

10. The evidence of defendant during cross examination was also relied upon by the Trial Court ultimately to hold that t