The captioned second appeal is filed by the

unsuccessful

defendant,

who

has

questioned

the

concurrent findings of the Courts below, wherein both

Courts have decreed the suit filed by plaintiff declaring that

plaintiff is the absolute owner and consequently, directed

defendant to handover the vacant possession of the suit

schedule property.

2. For the sake of brevity, the parties are referred

as they are ranked before the Trial Court.

3. The plaintiff instituted a suit for declaration and

for possession in O.S.No.109/2014. Plaintiff claimed that

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the suit schedule property is an ancestral property. It is

further contended that father of plaintiff partitioned family

properties between his two sons and in the said partition,

the suit schedule property was allotted to share of the

plaintiff. It is also contended that plaintiff's name was duly

mutated pursuant to partition. The plaintiff claimed that

defendant has no right and title over the suit schedule

property. The plaintiff has further pleaded that in the

month of March 2013, defendant requested plaintiff to

permit him to cultivate land for a period of one year. The

plaintiff claimed that in terms of oral agreement, the

plaintiff handed over possession to the defendant for a

period of one year. After expiry of agreed period, though

plaintiff requested defendant to hand over the possession,

he refused the same. Hence, the present suit.

4. The defendant, on receipt of summons, contested

the proceedings and admitted title of the plaintiff. The

defendant admitted that plaintiff's father acquired suit

schedule property and later, the plaintiff has succeeded to

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the suit schedule property. However, defendant contended

that it was plaintiff's father, who delivered possession

to the defendant in the month of April, 1990 and since

then, he has developed and improved suit schedule

property as he is enjoying suit schedule property

continuously, openly, peacefully, which was well within the

knowledge of plaintiff and therefore, claimed that he has

perfected his title by way of adverse possession.

5. The plaintiff to substantiate his case examined

himself as P.W.1 and one independent witness as P.W.2

and adduced documentary evidence vide Exs.P.1 to 11,

while defendant examined himself as D.W.1 and one

independent witness as D.W.2 and produced three

documents vide Exs.D.1 to 3.

6.

Trial

Court

having

examined

oral

and

documentary evidence answered issue No.3 and 4 in the

negative. In absence of clinching rebuttal evidence, Trial

Court has held that defendant has failed to prove that he

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has perfected his title by way of adverse possession.

Accordingly, proceeded to hold that suit is well within time

and plaintiff is entitled to seek possession of the suit

schedule property.

7. Feeling aggrieved by the judgment and decree of

the Trial Court, defendant preferred an appeal before First

Appellate Court. First Appellate Court having independently

assessed oral and documentary evidence found that

defendant

has

admitted

plaintiff's

title.

Therefore,

Appellate Court was of the view that in absence of

clinching evidence indicating that defendant has perfected

his title, plaintiff cannot be non-suited. The defendant is

bound to hand over possession to the plaintiff. The

Appellate Court referring to the materials on record has

also negatived the defence set up by the defendant and

has come to the conclusion that defendant was in

permissive possession as he has not perfected his title by

way of adverse possession.

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8. Heard learned counsel appearing for the plaintiff

and learned counsel appearing for the defendant. Perused

concurrent findings of the Courts below.

9. It is a trite law that in case of adverse possession

of land, two aspects has to be taken into consideration.

Firstly, the nature of possession of the land should be

exclusive, continuous, uninterrupted and it should be

actual physical possession and not merely constructive

possession over the la