A claim of adverse possession must be clearly established and cannot contradict other claims of title; failure to do so results in dismissal of the suit.

JUDGMENT :

This second appeal is preferred against the judgment and decree passed in As No.216 of 2002, dated 28/02/2003 passed by the II Additional District Judge, Tirunelveli, reversing the judgment and decree passed in OS No.41 of 1999, dated 10/10/2001 by the Additional Sub Court, Tenkasi.

2.The plaint:-The suit property originally belonged to Uthumalai Jamin. During the Jamin period, the property was registered in the name of the plaintiff's father Navaneethakumar Thevar in patta No.391 measuring about 1.39 Acres. He planted coconut trees and enjoying the property. Later, the property was given to the plaintiff by his father orally. Ever-since, the plaintiff is in possession and enjoyment. Later, it came to know that 'B' memo was issued in the name of one Sankarapandia Thevar. Due to long, open and continuous possession, the plaintiff prescribed title by adverse possession. More- over, it also came to know that now the suit property is classified as 'assessed vacant land'. So, the suit is laid for declaration that the suit property belongs to the plaintiff and for permanent injunction directing the defendants to grand patta in favour of the plaintiff and for costs.

3.The statement:-It is denied that the property originally belongs to the plaintiff's father during Jamin. The property later given to the plaintiff orally. The suit property was never in the independent possession of the plaintiff's father and the plaintiff. As per the revenue records, it is classified as 'assessed vacant site'. Now the Government is taking steps to issue patta to the landless poor. At that time, the plaintiff did not make any objection. Now challenging the same, he filed the suit. The plaintiff cannot claim contradictory right one by way of possession and another by way of adverse possession.

4.On the pleadings of both parties, the trial court issued the following issues:-

(1)Whether the plaintiff is entitled to the relief of declaration that the suit property absolutely belonged to him?

(2)Whether the plaintiff is entitled for mandatory injunction as prayed for?

(3)To what other relief, the plaintiff is entitled to?

5.Before the trial court, on the side of the plaintiff, 2 witnesses were examined and 4 documents marked. On the side of the defendants, one witness was examined and 3 documents marked. The Commissioner's report and plan were marked as Exs.C1 and C2.

6.The trial court decreed the suit as prayed without costs. Against which, appeal was preferred before the II Additional District Judge, Tirunelveli. The appellate court set aside the judgment and decree of the trial court and dismissed the suit without costs.

7.Against which, this second appeal is preferred.

8.At the time of admission, the following substantial question of law was framed:-

“Whether the plaintiff has perfected his title in the suit property by adverse possession on the facts and circumstances of the case?”

9.Heard both sides.

10.The plaint states that the suit property belongs to the plaintiff's ancestor standing in the name of his father during the estate period. Later, by oral arrangement, it was allotted to him. So, the first para reads that the property belongs to him by way of oral family arrangement. Quite contra to this, in para 5, it has been stated by him that by long, open, peaceful possession, they prescribed title by adverse possession. It must be noted that plea of adverse possession is not taken in the alternative. The plaintiff ought to have exercised the option of election at the time of trial. But however, he has not chosen, either one of those pleas namely the plea on the basis of the title or on the plea of adverse possession by clear submission.

11.Reading of the evidence of PW1 shows that the plea of adverse possession was not taken. But the plea of ancestral title is stated and subsequent oral or family arrangement. Even though, the doctrine of election was not directly brought on record at the time of trial, but from the evidence of PW1 in the chief does indi