D ARUNACHALAM Vs. P EKAMBARAM

JUDGEMENT

(1.) THE unsuccessful plaintiff is the appellant.

(2.) THE plaintiff/appellant filed the suit for declaration declaring his title to the suit property and for injunction or in the alternative for recovery of possession of the suit property. THE case of the appellant/plaintiff was that the property in T.S.No.1497/2 and 1498/2 and 1493/2 originally belonged to one Sundaramoorthy, father of the second defendant and he formed a lay out after getting approval from the Deputy Director of Town and Country Planning, Salem and appointed one R.Veeramani as general power agent and sold various plots to various persons and the plaintiff purchased the suit property under the registered sale deed dated 21.7.1989 from Sundaramoorthy through his power agent Veeramani and eversince the date of purchase, he is in possession and enjoyment of the same and the second defendant is the son of Sundaramoorthy and the third defendant is his power agent and the first defendant claims to have purchased the suit property from the power agent of the second defendant under a sale deed dated 28.7.2008 and attempted to take forcible possession of the suit property and therefore, the suit was filed for declaration and injunction or in the alternative for recovery of possession.

(3.) MR.S.K.Raghunathan, learned counsel for the appellant submitted that, admittedly, the appellant purchased the property under a registered sale deed dated 21.7.1989 and even assuming that Sundaramoorthy was given life estate under the compromise decree, the said Sundaramamurthy died on 4.9.1989 and therefore, as per the provisions of explanation (b) to Article 65 of the Limitation Act, the appellant has perfected title by adverse possession for more than 15 years before filing of the suit and this was not properly appreciated by the courts below. He also relied upon the judgment reported in JAGAT RAM v. VARINDER PRAKASH (AIR 2006 SC 1786) and submitted that as per the above judgment, the possession of the title holder, after the death of life estate holder, became adverse to the knowledge of the true owner and therefore, the purchaser is entitled to declaration as he had perfected title by adverse possession. He further contended that when the sale deed specifically states that possession was handed over to the purchaser, the recital in the sale deed can be taken into consideration to draw a presumption that possession was handed over and relied upon KAMAKSHI AMMAL v. RAJALAKSHMI (AIR 1995 MADRAS 415). He further contended that the second defendant is a competent witness to speak about the possession of the property and he did not enter into the box and his power agent was examined to prove the possession and the power agent cannot be expected to give evidence regarding the matter which is within the personal knowledge of the principal and admittedly, the third defendant, power agent was appointed only on 7.4.1999 and therefore, he cannot speak about the possession of the owner viz., the second defendant and in the absence of any contra evidence by the second defendant, the court ought to have accepted the case of the appellant regarding adverse possession. He therefore, submitted that from the date of sale in the year 1989, the appellant is in possession of the property and therefore, he has perfected title by adverse possession and hence, he is entitled to the relief of declaration.