A purchaser of an undivided share in coparcenary property cannot sue for declaration of title; the proper remedy is partition. Adverse possession requires 12 years of hostile possession unbroken by pending litigation.

JUDGMENT

The plaintiff is the appellant in the second appeal. He challenges the judgment of the learned Subordinate Judge at Hosur in A.S.No.151 of 1996 dated 11.12.1996 in confirming the judgment and decree of the learned District Munsif at DenkaniKottai in O.S.No.691 of 1993 dated 18.03.1996.

2. For the sake of convenience, the parties shall be referred to as per their ranks in the suit.

3. The case of the plaintiff is that the property situated in S.No.44/2, Doddamati Village, DenkaniKottai Taluk, Krishnagiri District belonged to two brothers, viz., Kempe Gowdu and Munia Gowdu. The extent of their holdings being 1.35 acres. The defendants are the descendants of Kempe Gowdu. The plaintiff pleaded that Munia Gowdu married one Devamma and begot a female child, Kenjamma. Kenjamma married one Somalingappa. Munia Gowdu had passed away about 70 years prior to the presentation of the plaint. He pleaded that out of the 1.35 acres, 67 ½ cents each were enjoyed by Kempe Gowdu and Munia Gowdu.

4. Of the 67 ½ cents, which came to the hands of Munia Gowdu, was enjoyed by Devamma. Thereafter, by way of a settlement deed dated 15.06.1950, she settled the same in favour of her daughter, Kenjamma and her son-in-law, Somalingappa. The said Kenjamma and Somalingappa sold the property in favour of the plaintiff on 07.04.1983. As the plaintiff's title was being disputed by the defendants and his possession was being disturbed, he cameforth with a suit for declaration of title and for permanent injunction.

5. The defendants pleaded that the property belonged to Kempe Gowdu and that, he had been in possession and enjoyment of the property, by mutating the revenue records in his favour, for several years. Thereafter, the defendants have been in possession of the same. They pleaded that the plaintiff does not have any right, title, or interest over the property. They added that Kenjamma was not the only daughter of Munia Gowdu and Devamma and there were two other children, from whom the plaintiff had not purchased the property and hence, the sale is not valid.

6. On the basis of these pleadings, the learned Trial Judge framed the following issues:

7. On the side of the plaintiff, he examined himself and four other witnesses as PW1 to PW5. He marked Ex.A1 to Ex.A13. On the side of the defendants, the first defendant examined himself as DW1 and another witness as DW2, and marked Ex.B1 to Ex.B9.

8. Upon consideration of the oral and documentary evidence, the learned Trial Judge came to a conclusion that the plaintiff had not proved his title to the property and dismissed the suit. Aggrieved by the same, the plaintiff preferred A.S.No.151 of 1996. The learned Subordinate Judge at Hosur confirmed the said judgment. Hence, this second appeal at the instance of the plaintiff.

9. This court admitted the second appeal on 10.12.2003 and framed the following substantial questions of law:

“1.Whether the Courts below are right in rejecting the suit of the plaintiff without reference to Ex.A1 registered sale deed in favour of the plaintiff in respect of the suit properties, as also the registered settlement deed in favour of the predecessors of the vendors of the Plaintiff, particularly when the Defendant had not adduced any evidence to counter the entitlement of the plaintiff to the suit properties?

2.Whether the courts below had erred in not considering the valid and proper title of the plaintiff to the suit properties, as evidenced by documents, in contrast to the claim of the defendants to the same?

3. Whether the courts below had erred in dismissing the suit of the Plaintiff for title on the ground that he had failed to establish his lawful possession of the suit properties, without considering the entitlement of the Plaintiff on the basis of his adverse possession for over the statutory period?”

10. I heard Mr.V.Sekar for Mr.C.R.Muralidharan for the appellant and Mr.G.Vigneswaran for Mr.V.Nicholas for the respondent.

11. Mr.V.Sekar urges that there was an oral partition