A suit for recovery of possession based on title cannot be dismissed for lack of current possession proof where the defendant fails to establish independent title. Adverse possession requires specific proof of hostile intent (animus possidendi) and cannot be claimed by those in permissive possession.

JUDGMENT :

R.SAKTHIVEL, J.

1.Feeling aggrieved by the Judgment and Decree of 'the Principal Sub Court, Vridhachalam' ['First Appellate Court' for short] passed in A.S. No.7 of 2003, wherein and whereby the Judgment and Decree dated October 28, 2002 of 'the Principal District Munsif Court, Vridhachalam' ['Trial Court' for short] passed in O.S. No.1069 of 1989 was reversed, the plaintiffs in the Original Suit have come up with this Second Appeal.

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

PLAINTIFFS' CASE

3. Case of the plaintiffs is that an extent of 2 Acre 76 Cents in Re-Survey No.123/1 of Narumanam Village, Vridhatchalam Taluk was originally owned by Appadurai as his ancestral entitlement. Appadurai passed away intestate in the year 1957 and he was survived by his wife - Chellammal and his three daughters who are the plaintiffs herein. After the demise of Appadurai, his wife and the plaintiffs who were then minors, were enjoying the aforesaid extent of 2 Acre 76 Cents.

3.1. On January 6, 1959, Appadurai's wife, for herself and her minor daughters viz., plaintiffs, sold an extent of 1 Acre out of the aforesaid 2 Acre 76 Cents, situate on the western side thereof, to the first defendant by way of registered Sale Deed. Appadurai's wife and the plaintiffs continued to the enjoy the remaining extent of 1 Acre 76 Cents within specific four boundaries in the Suit survey number, which is the suit property herein.

3.2. All the plaintiffs got married by the year 1966 and moved out of the Suit village. Hence the suit property was orally leased out [Varam] to the defendants 3 and 4, who are their relatives. Fifth defendant is the son of fourth defendant. Then, in 1981, Appadurai's wife / plaintiffs' mother passed away intestate.

3.3. Under the UDR Scheme [Updating the Registry Scheme], without the knowledge of the plaintiffs' side, at the instigation of defendants 1 and 2, the authorities issued Patta in the name of defendants 3 and 4 and thereby undermined the plaintiffs' title and rights over the suit property. Hence, the plaintiffs issued legal notice on April 28, 1989 to defendants 1, 2 and 5. Defendants 1 and 2 replied on May 15, 1989. After exchange of notices, the plaintiffs have come up with this Suit for declaration, delivery of possession and mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908 from the date of plaint till the date of delivery along with costs.

CASE OF DEFENDANTS 1 TO 5

4.The fourth defendant filed a written statement on August 25, 1992 and the same was adopted by the other original defendants, namely defendants 1 to 3 and5. According to the defendants, one Chinnathambi Padayatchi orally purchased the suit property from Kuppa Padayatchi by way of an oral sale. Subsequently, Chinnathambi Padayatchi's sons, namely Nataraja Padayatchi and Ponappa Padayatchi, divided and enjoyed the suit property equally. The eastern side 88 Cents was enjoyed by Nataraja Padayatchi and the western side 88 Cents was enjoyed by Ponappa Padayatchi.

4.1. After the demise of Nataraja Padayatchi, his eastern 88 Cents fell into the hands of his son – Ranganatha Padayatchi (Defendant No.4), who subsequently gave the said 88 Cents to his son / fifth defendant - Rajini in a partition. UDR Patta was issued in favour of defendants 4 and 5 in respect of the eastern 88 Cents. Fourth