PERIYASWAMY Vs. PAZHANISWAMY

JUDGEMENT

(1.) THE second appeal arises from the judgment and decree of learned Sub Judge, Ottapalam in A.S.No.5 of 2005 reversing dismissal of O.S.No.84 of 2004 of the court of learned Munsiff Magistrate, Mannarkkad. Respondent/plaintiff, on the strength of Ext.A1, assignment deed dated 28 -04 -1990 sued for recovery possession of the suit property alleging that appellant trespassed into the said property on 01 -09 -1991. Respondent claimed that when there was an attempt by the appellant to trespass into the suit property, he filed O.S.No.72 of 1990 seeking decree for prohibitory injunction. During the pendency of that suit appellant trespassed into the property. Hence, respondent withdrew O.S.No.72 of 1990 and filed the present suit for recovery of possession. Appellant denied that respondent has title over the property. He claimed that one Mr.Arumugha Gounder had purchased the suit property from Krishnan Udayar under an oral sale. Appellant purchased the property from the said Arumugha Gounder as per agreement on 15 -12 -1986 paying Rs.3,000/ - by way of advance. Later, Arumugha Gounder executed Ext.B2, assignment deed No.357 of 1990 in favour of appellant. Since there was some mistake in the document, Arumugha Gounder executed Ext.B3, correction deed in favour of appellant. Appellant claimed that title of respondent if any, is lost by adverse possession and limitation.

(2.) TRIAL court held that even before the date of alleged trespass pleaded by the respondent, appellant was in possession of the property. Trial court refused to grant relief to the respondent. The first appellate court held that the claim of appellant for title over the property cannot stand and that the plea that respondent's title is lost by adverse possession cannot be accepted. Accordingly, respondent was given a decree for recovery for possession. Hence, this second appeal.

(3.) IT is not disputed that 30 cents including the suit property (20.5 cents) originally belonged to Krishnan Udayar as per Ext.A2, assignment deed No.3725 of 1972. According to the respondent, after the death of Krishnan Udayar, the suit property devolved on his wife and children who executed Ext.A1, assignment deed on 28 -04 -1990 in favour of respondent and thus he acquired title over the suit property.