Title to property must be established through credible evidence; prior possession or adverse claims limit recovery rights.

JUDGMENT :

G.ARUL MURUGAN, J.

1. The plaintiffs are before this Court on appeal. The Second Appeal is filed challenging the judgment and decree, dated 10.01.2019, made in A.S.No.4 of 2014 on the file of the Additional Subordinate Court, Tenkasi, reversing the judgment and decree, dated 12.08.2012, made in O.S.No.47 of 2002 on the file of the District Munsif-cum-Judicial Magistrate Court, Shencottah.

2. For the sake of convenience, the parties are referred to, as per the litigative status before the trial Court.

3. It is the case of the plaintiffs that the suit property originally belonged to one P.T.Pillai. The two sons of P.T.Pillai, namely, Bhagavathy Pillai and Chidambaram Pillai, had, thereafter, got the suit property and were in enjoyment of the same. From them, the plaintiffs have purchased the suit property on 31.07.1990. During the time of purchase, the second plaintiff was a minor and his mother, as a natural guardian, had participated in the execution of the sale deed. Now, the second plaintiff became major.

4.It is the further case of the plaintiffs that in the lower side of the suit property, the properties of the first defendant and Arumuga Mudaliyar are situated. The first defendant had purchased that property in the year 1997 from the relatives of the plaintiffs' vendor, Sethupillai. The extent purchased by him was around two acres. The suit property had old S.No. 137/4, correlation new S.No.474/3 having 2.33 acres and old S.No.137/2, correlation new S.No.474/2 having 47 cents. As such, the total extent of the suit property is 2 acres 80 cents. It is the further case of the plaintiffs that in the suit property in new S.No.474/2, the defendants tried to encroach upon a portion of 100 feet to take over the trees on 10.07.2002. As such, the plaintiffs have come up with the suit for declaration and permanent injunction.

5.Pending the suit, the first defendant died and therefore, the defendants 3 to 9 were impleaded in the suit.

6.Based on the Advocate Commissioner's report, the suit relief was amended for a further relief of recovery of possession in respect of 13 cents, as per “DF” portion marked in the Advocate Commissioner's plan.

7.The defendants resisted the suit by filing a written statement disputing claim of the plaintiffs. It is the case of the defendants that the vendor of the plaintiffs, P.T.Pillai and the vendors of the defendants, Sethuramalingam Pillai and one Seetharama Pillai were brothers and in the partition executed among them, the suit properties were allotted to the share of P.T.Pillai and the property purchased by the defendants were allotted to Sethuramalingam Pillai. The first defendant's father, Subbiah Pandian had purchased the property measuring 1.18.0 hectares in R.S.No.499/1 on 30.04.1968 for valuable consideration. Pursuant to the death of the father of the first defendant, the first defendant and his brother, Mohandas through an oral partition had been enjoying the property, as upper and lower portion.

8.It is the specific case of the defendants that the first defendant's father and thereafter, by the first defendant, are in possession and enjoyment of the properties, as purchased and handed over at the time of purchase and the extent of the portion of the suit property in the possession of the first defendant belongs to them, as they have perfected the title by adverse possession. The defendants had contended that the vendors of the plaintiffs, Bagavathy Muthu Pillai and his son Chidambaram Pillai had already instituted a suit in O.S.No.59 of 1985 on the file of the District Munsif Court, Sengottai as against the first defendant and others, which came to be dismissed. The appeal filed by their vendors in A.S.No.106 of 1986