The burden of proof lies on the party asserting ownership, and admission of the opposing party's claim can result in dismissal of the suit, particularly when coupled with limitations on time for claims.

JUDGMENT :

(G. ARUL MURUGAN, J.)

This Second Appeal is filed as against the judgment and decree, dated 21.08.2018 on the file of the Subordinate Court, Devakottai in A.S.No.35 of 2017 reversing the judgment and decree, dated 22.09.2017 in O.S.No.152 of 2013 on the file of the District Munsif cum Judicial Magistrate Court, Karaikudi.

2. The plaintiff in the suit is on appeal. The parties are referred to, as per their status before the trial Court.

3.It is the case of the plaintiff that the vendor of the plaintiff, Maragathamammal purchased the plaint 'A' schedule property on 24.09.1975 in Ex-A1 and thereafter, sold the same in favour of the plaintiff on 23.08.1995 in Ex-A2. According to the plaintiff, even pursuant to the sale in Ex-A2, the vendor, Maragathamammal, continued to be in possession of the property, as a tenant and vacated and handed over the possession of the house in the suit property in the year 2007. According to the plaintiff, plaint 'B' schedule property is part of plaint 'A' schedule property and around the year 2008, the defendant, while he constructed a house, had encroached a portion of the property of the plaintiff, which is shown as plaint 'B' schedule property and had planted trees. The plaintiff had demanded the defendant to vacate the encroachment and issued a notice in Ex-A8 for which, the defendant had issued a reply notice in Ex-A9. Thereafter, the plaintiff had come up with the suit for declaration and recovery of possession of the plaint 'B' schedule property.

4. The defendant resisted the suit by filing a written statement disputing that plaint 'B' schedule property is a part of plaint 'A' schedule property. According to the defendant, the plaint 'B' schedule property is part of the property of the defendant purchased by him in the year 1974 in Ex-B4 and the defendant had also obtained patta for the property in Ex-B1 and sought for dismissal of the suit.

5. During trial, the plaintiff examined herself as PW-1 and Ex-A1 to Ex-A9 were marked. On the side of the defendant, he examined himself as DW-1 and marked Ex-B1 to Ex-B4. An Advocate Commissioner was appointed and his report along with plan were marked as Ex-C1 and Ex-C2.

6. The trial Court after considering the evidences and documents found that the suit property absolutely belongs to the plaintiff and the defendant has encroached the plaint 'B' schedule property and decreed the suit. Aggrieved, the defendant had preferred an appeal in A.S.No.35 of 2017 and the lower appellate Court, after re-appraising the evidences, allowed the appeal on the ground that even as per the documents relied on by the plaintiff in Ex-A1 and Ex-A2, already the plaintiff is having an excess of land purchased by her and therefore, the claim made by the plaintiff to the effect that the plaint 'B' schedule property forms part of plaint 'A' schedule property is not sustainable. The lower appellate Court further found that, in fact, the vendor of the plaintiff had already sold an excess of land than what she has purchased in Ex-A1 and further, from the Advocate Commissioner's report, it is confirmed that now the plaintiff is already having further extent of land than what was conveyed by her vendor in Ex-A2. Assailing the reversal of the decree in the appeal, the plaintiff is before this Court on appeal.

7. This Court, by order, dated 19.03.2019, admitted the Second Appeal on the following substantial question of law:

“Whether the lower appellate Court is right in overlooking the admission of the defendant that he had absolutely no title for S.No.428/3, especially when the defendant did not plead and prove adverse possession to any extent in S.No.428/3?”

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