IMPORTANT POINT
The burden of proof is on the plaintiff in a suit for declaration and possession. Timely action is required in seeking mandatory injunction. Failure to establish title and adverse possession by the defendant can lead to the reversal of appellate court findings.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgement and decree dated 30.10.2019 made in A.S. No.27 of 2017 on the file of the learned Sub Court, Arakkonam, reversal of the judgment and decree dated 08.03.2017 made in O.S. No.138 of 2009 on the file of the learned District Munsif Court, Sholinghur.)

1. The defendant in a suit for declaration, possession and mandatory injunction, succeeded before the Trial Court and suffered reversal findings before the First Appellate Court. The Legal Representatives of the defendant are the appellants herein.

2. The parties are described as per their litigative status before the Trial Court.

3. The case of the plaintiffs is that the western portion of the schedule 'A' property is the ancestral property of the plaintiffs and eastern portion of the schedule 'A' property is the self acquired property of the father of the plaintiffs. According to the plaintiffs, the father sold a portion of the suit property measuring 18 feet East West, 85 feet North South, in all 1530 sq.ft and also another portion 20 feet East West and 54 1/2 feet North South, in all 1090 sq.ft, in favour of the defendant, for valid sale consideration and retained schedule 'D' property. However, it is stated that in the sale deed, there was a mistake while describing the boundaries. According to the plaintiffs, they are retaining the suit property for over the statutory period and are in open continuous and uninterpreted possession to the knowledge of the defendant, insofar as B, C and D properties. As the defendant tried to interfere with the plaintiffs' property and also claimed to have orally purchased the 'B' schedule property. The plaintiffs were constrained to file the suit.

4. The defendant filed a written statement denying the plaint averments and resisted the suit claim contending that the plaintiffs are not the owners of the B, C, D properties and the defendant never trespassed into 'B' schedule suit property in any manner and contending that the defendant was having absolute right, title and interest over the suit property and the defendant has been in open, continuous and uninterpreted possession over the statutory period, to the knowledge of the plaintiffs, and the defendant has perfected right over the suit property by adverse possession. The defendant also states that insofar as 'B' schedule, the plaintiffs' father as well as the plaintiffs never objected to the defendant raising a compound wall also when patta was issued in favour of the defendant. Insofar as 'C' and 'D' properties, the defendant claims to have constructed an Asbestos roofed shed, bath room and Toilet as well as septic Tank, even in the year 1995 and has been in enjoyment of the same for several years, more specifically for over 12 years, being the statutory period to claim the right of adverse possession. The suit was therefore, sought to be dismissed.

5. The Trial Court dismissed the suit, rejecting the plaintiffs' claim. The First Appellate Court, reversed the findings of the Trial Court and allowed the Appeal filed by the plaintiffs. Aggrieved by the reversal findings, the LRs of the defendant have preferred the present Second Appeal.

6. On 06.01.2022, the above Second Appeal was admitted on the following three substantial questions of law:-

“(i) Whether the First Appellate Court is right in decreeing the suit by placing the negative burden on the defendant, particularly when the burden of proof is always lie upon the plaintiffs, and they cannot take advantage of the weakness in the defense?

(ii) Whether the First Appellate Court has erred in ignoring the linear measurements given to the suit property conveyed under the sale deed dated 30.01.1984, when the plaintiffs are debarred from raising any such dispute in the absence of any challenge made to Exhibit A2 sale deed by the vender?

(iii) Whether the First Appellate Court committed an error in rejecting the defense plea of adverse posses