Long possession without clear evidence of hostile intent does not equate to adverse possession, and permissive possession cannot turn adverse without communication of hostility.

JUDGMENT :

R. SAKTHIVEL, J.

This Second Appeal is filed by the defendant in the Original Suit. Challenge is to the Judgment and Decree dated February 1, 2012 passed in A.S.No.26 of 2011 by the 'Subordinate Court, Harur' [henceforth 'First Appellate Court'] reversing the Judgment and Decree dated December 22, 2009 passed in O.S.No.516 of 2004 by the 'District Munsif Court, Harur' [henceforth 'Trial Court'].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

PLAINTIFFS' CASE

3. According to the plaintiffs, the first plaintiff's husband is Rathinam, and the plaintiffs 2 and 3 are their sons. The defendant is the first plaintiff’s brother. Suit Property was purchased by the first plaintiff's husband - Rathinam vide Sale Deed dated December 5, 1972 and he was in possession and enjoyment till his demise in 1993. Thereafter the plaintiffs are in its possession and enjoyment. The plaintiffs are residing in Pallipatty Village while the Suit Property is situate in Eachampadi Village which is 50 Kms away from the said Pallipatty Village. The defendant is residing in Eachampadi Village has been maintaining the Suit Property and paying kists on behalf of the plaintiffs. However, the defendant clandestinely mutated the revenue records in his name, filed a Suit in O.S.No.377 of 2004 for permanent injunction against the plaintiffs in respect of the Suit Property, and also attempted to trespass into the Suit property on September 29, 2004. The plaintiffs learnt about the mutation of revenue records only in the 1st week of July 2004. Hence the Suit for declaration and permanent injunction.

DEFENDANT'S CASE

4. The defendant filed written statement wherein it is stated that though the Suit Property originally belonged to Rathinam, the defendant is in its actual, open, continuous and uninterrupted possession and enjoyment from 1973 i.e., for more than 30 years, and perfected title by adverse possession in 1985 itself. The plaintiffs were never in its possession and enjoyment. In fact, Rathinam himself had admitted the defendant’s adverse possession and handed over all the original documents. Thereafter, the defendant purchased the property on the western side of Suit Property and has been enjoying it along with Suit Property as one. In June 2003, plaintiffs borrowed a sum of Rs.40,000/- as hand loan from the defendant and refused to repay the same, and there arose a dispute between the plaintiffs and the defendant. While so, the plaintiffs attempted to trespass into the Suit property on July 25, 2004. Hence, the defendant obtained interim injunction vide the Decree passed in O.S.No.377 of 2004. The Suit Property herein constitutes Suit 'A' Schedule property therein while the property purchased by the defendant vide Ex-A.1 constitutes Suit 'B' Schedule property therein. The daughters of said Rathinam, namely Muthumani and Karpagam, are necessary parties to the Suit, and are not impleaded. Hence, the Suit is bad for non joinder of necessary parties. Accordingly, he sought to dismiss the Suit.

TRIAL COURT

5. The plaintiffs’ Suit in O.S.No.516 of 2004 was tried jointly by the Trial Court along with the said defendant’s Suit in O.S.No.377 of 2004. The evidence were recorded in the defendant’s Suit in O.S.No.377 of 2004. At trial, first plaintiff - Manickammal was examined as D.W.1 and two other witnesses were examined as D.W.2 and D.W.3, and Ex-B.1 wa