A plaintiff in a title dispute must establish possession and title with credible evidence, failing which a claim cannot prevail against a defendant's substantiated counterclaim.

JUDGMENT

The unsuccessful plaintiff in a suit is the appellant. The suit is for declaration of title and injunction. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the plaintiff has come by way of this Second Appeal.

2. According to the appellant/plaintiff, the suit property lies in S.No.65/4 equivalent to the Zameen Pymash No.626. It was claimed by the plaintiff that the old Pymash numbers of the suit property were 625, 626 and 627. It was claimed by the plaintiff that 55 cents of land in old Pymash No.626 originally belonged to grandfather of the plaintiff Muthumayathevar and he acted as Poosari cum Trustee of Muniyasamy Temple. It was also claimed that Muniyasamy Temple situated in old Pymash No.626 and the entire extent of 55 cents had been in possession and enjoyment of the plaintiff and his predecessor in interest in their capacity as Poosari. The defendant's father purchased 2 acres 85 cents in old Pymash Nos.625 and 627 under a sale deed dated 26.09.1940. The defendant had no claim or right over old Pymash No.626. However, they got patta for the entire new S.No.65/4 to an extent of 3 acres 40 cents including the old Pymash Nos.625, 626 and 627. The plaintiff submitted a petition before the Tahsildar, Usilampatti for correction of revenue records and after enquiry, he ordered inclusion of the Trustee of the Muniyasamy Temple also as a co-pattadhar for entire 3 acres 40 cents in new S.No.65/4. Though the defendant has no right over the suit property, he attempted to interfere with the plaintiff's possession and hence, the above said suit was laid.

3. The defendant filed a written statement denying the right as well as possession over the suit property. It was claimed by the defendant that entire 3 acres 40 cents in new S.No.65/4 has been in possession and enjoyment of the defendant and his predecessor in interest. They denied the existence of Muniyasamy Temple in the said survey number. It was also claimed by the defendant that Muniyasamy Temple situated on the Eastern side of the suit property in Kazhuva Devar's land. The order passed by the Tahsildhar, Usilampatti for inclusion of the plaintiff's name in the revenue records was set aside on an appeal filed by the defendant. It was also claimed by the defendant that the possession of the defendant over the entire 3 acres 40 cents in the suit survey number was confirmed in the settlement proceedings and patta was issued by the Assistant Settlement Officer in the name of the defendant. Thus, claiming continues possession over the entire extent of 3 acres 40 cents in new S.No.65/4, the defendant sought for dismissal of the suit.

4. Before the trial Court, the plaintiff was examined as P.W.1 and yet another witness was examined as P.W.2. 7 documents were marked on behalf of the plaintiff as Ex.A1 to Ex.A7. The defendant was examined as D.W.1 and 38 documents were marked as Ex.B1 to Ex.B38.

5. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff miserably failed to prove his possession over the suit property and dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.224 of 2000 on the file of II Additional District Court, Madurai. The first appellate Court affirmed the findings of the trial Court. Aggrieved by the same, the plaintiff has come by way of this Second Appeal.

6. At the time of admission, this Court formulated the following substantial question of law by an order dated 14.10.2003:

“Whether in law, have not the Courts below erred in overlooking that admittedly when the entire extent belonged to the plaintiff's ancestors and the defendant having purchased only a part of the same, the onus is on him to prove his title?

7. The learned counsel for the appellant vehemently contended that under Ex.A2 equivalent to Ex.B1, the defendant's father Periyasamy Deva