GNANAMUTHAN Vs. APPAVU NADAR

JUDGEMENT

(1.) The plaintiff, whose legal representatives are the first and the second respondents in this Second Appeal, sued the defendants for a declaration of his title and possession in respect of the suit property, which was described as , bearing Survey No. 304/1, and having an area of 4 acres and 12 cents. The second defendant whose legal representatives are the appellants here, contended, that the plaintiff has title and possession only in respect of two acres and two cents in Survey No. 304/1k. At the trial, it was elucidated, that the property in dispute is a plot of land, 78 cents in extent, in Survey Nos. 304/1(1), 304/1J and 304/2B and marked red in Ext. A1, plan prepared by a Commissioner who was deputed in the case. It has also been found by the two courts, that the plaintiff had title to two acres and two cents in 304/1K, as to which there is no dispute, and that he has also acquired title by adverse possession to the above plot of 78 cents.

(2.) In the Second Appeal against these concurrent findings, two points were urged: firstly, that no issue had been raised at the trial as to the acquisition of title by adverse possession and secondly that the plaintiff had no animus to prescribe against the defendant. I cannot find my way to accept these arguments. In the plaint it was averred, that the plaintiff has long been in possession of the property, and in the replication this was made clear by a specific plea of adverse possession. The issue "whether the plaintiff was entitled to the declaration prayed for" though general, was yet comprehensive, and the parties adduced all available evidence. There was no complaint on this score before the lower appellate court, and I do not think that the present complaint has any force.

(3.) The findings are, that the plaintiff has been in possession of the plot of 78 cents, as if it belonged to him and formed part of his property. Counsel contended that such possession was based on a mistake of fact as to the title to the property, so as to exclude the operation of the rule of adverse possession, and relied on Maqbul Ahmad v. Farhat Ali (66 Indian Cases 461) which was a case of partition between coparceners each of whom by mistake was in possession of certain plots which had been allotted to the other and such possession continued even after the mistake was discovered and in which the principle applied was stated thus :--