Co-owners can maintain suits against trespassers without all heirs being present; adverse possession requires proof of open, hostile, and continuous possession, which was not established by the defendants.

COMMON JUDGMENT

These three second appeals impugn the judgment and decree of the Court of the learned Subordinate Judge at Madurantakam in A.S.No.23 of 1998 & A.S.No.24 of 1998 dated 31.08.1999 in reversing the judgment and decree in O.S.Nos.123 & 144 of 1985 on the file of the District Munsif Court at Madurantakam, dated 30.01.1997.

2. Since all the three appeals are connected to each other, they are disposed of by this common judgment.

3. For the sake of convenience, the parties shall be referred to as per their ranks in O.S.No.123 of 1985.

4. The facts gleaned from the pleadings are as follows:

The properties situated in Old Survey No.68/5, 68/6 and 68/7 of Vilambur Village, Kadapakkam Firka, Madurantakam Taluk, Chengalpattu District, belonged to the 4^th defendant, K.P.M.Mohideen Meera Sahib. He had mortgaged the property in favour of one Balasundara Mudaliar, the husband of the plaintiff-Sivagami Ammal. Balasundara Mudaliar brought forth a suit for foreclosure in O.S.No.410 of 1962, on the file of the learned District Munsif at Chengalpattu. A preliminary decree was passed on 18.08.1966. Subsequently, a final decree also came to be passed. As the mortgagor failed to comply with the decree by defaulting in payment, Balasundara Mudaliar presented an execution petition in E.P.No.278 of 1968. The petition sought the sale of the mortgaged properties. The Court ordered sale and the property were sold on 11.02.1970. Balasundara Mudaliar, being a permitted decree holder, successfully bid in the auction and knocked the auction in his favour. The sale was confirmed in his favour on 23.08.1970. He took out an application in E.A.No.163 of 1971 to take possession of the property. The learned District Munsif ordered the application and Balasundara Mudaliar / the successful auction purchaser took possession of the same on 09.08.1971. Pending the litigation, the mortgagor / 4^th defendant sold the property in favour of the defendants 2 & 3.

5. The plaintiff alleged that Balasundara Mudaliar was in possession and enjoyment of the property till he passed away on 04.11.1982. She pleaded that her husband had orally gifted the property to her and that, she had been in possession and enjoyment of the same on and from that date. She pleaded that she mutated the revenue records in her favour and paid kist for the properties.

6. The plaint further alleged that the defendants, who have no right, title, or interest in the property, approached her to alienate the same in their favour. The plaintiff refused to do so. Angered by the same, the defendants attempted to trespass into the suit properties. One such attempt was made on 17.04.1985, which the plaintiff's watchman successfully prevented. Fearing that they would be successful on the next occasion, she presented a suit for declaration of title and for injunction on 19.04.1985.

7. Pending the suit, she had taken out an application for injunction. The said application I.A.No.285 of 1985 came to be dismissed. The plaintiff pleaded that the defendants, thereafter, trespassed into the property. Consequently, she amended the plaint into one for delivery of possession in I.A.No.844 of 1991.

8. Suit summons were served on the defendants. The defendants 2 & 3 filed a written statement. They admitted that the property belonged to the 4^th defendant, K.P.M.Mohideen Meara Sahib. They pleaded that they purchased an extent of 2.60 acres in Survey No.198/5, by way of a registered sale deed dated 07.06.1965. They pleaded that they are in possession and enjoyment of the property by paying the revenue charges. They added that the revenue records continues to stand in th