CHINNATHAMBI Vs. V SUNDARAKUMAR

JUDGEMENT

(1.) Defendants 1 to 3, who lost in both the courts below, are the appellants.

(2.) The case in brief is as follows:- The plaintiff filed a suit for declaring his title to the suit property marked A B C D A shown in green colour in the rough plan and also for permanent injunction. Originally the suit property and other properties were purchased by the plaintiff's father and the plaintiff's brother under a registered sale deed dated 15.03.1958 and they took possession of the same. They constructed pucca stone revetment on the border of their land purchased. They have also planted and raised silver oak trees, orange trees, vagai trees, jackfruit trees, pepper and cardamum plants and also coffee plants. They spent about Rs.5000/= even as early as 1958 and planted the said trees. They are now more than 24 years old. Subsequently, in the partition that took place between the plaintiff's father and brother, the suit property fell to the share of the plaintiff's father. Ever since the partition, the plaintiff's father became the absolute owner of the property and he died recently leaving his two sons to succeed to his estate. The plaintiff and his brother along with other sisters entered into a partition on 09.05.1982 and the suit property fell to the share of the plaintiff. Thus, from 07.05.1982 onwards the plaintiff became the absolute owner of the property and paying kist. Though the sale deed 15.03.1958 and further subsequent documents relating to the suit property describe the extent as 2.58 acres, the previous title holders of the suit property and the plaintiff's family members were in actual possession and enjoyment of the entire land within these boundaries. They are in continuous and uninterrupted possession and enjoyment of the lands within the boundaries described. Thus, by long continuous and uninterrupted possession, the plaintiff had also perfected title by adverse possession. The defendant are third parties and they have nothing to do with the suit property. They are in possession and enjoyment of the lands in S.No.9 situated on the west of the suit property. There is a pucca stone revetment constructed by the plaintiff's father about 24 years back and it is marked as A B in the rough plan. Even if the defendants have any right, they have lost the same. The defendants attempted to trespass into the suit property and hence the suit. The defendants admitted that the plaintiff is the owner of S.No.10 measuring 2.58 acres only. It is incorrect to state that the plaintiff's father and brother constructed a stone revetment on the border of the property. There is no stone revetment on the western side of S.No.10 belonging to the plaintiff. No doubt, there are trees in S.No.10 and they are not 24 years old. The plaintiff is entitled to only 2.58 acres and nothing more. These defendants own lands on the west of S.No.10. The defendants are the owners of S.No.9/1 and 9/2. These defendants and their father have been in possession and enjoyment of the aforesaid survey numbers. The stone revetment is not the dividing line of the properties of the parties. The plaintiff had no right in any portion of S.No.9/1 and 9/2. The plaintiff and his predecessors have not prescribed the title by adverse possession. The defendants have filed a suit against the plaintiff and his brother for declaration of their rights to S.No.9/1 and 9/2 and the trees. After knowing the suit in O.S.No.914 of 1983 and the interim injunction order, without receiving the summons the plaintiff has filed the suit. The defendants also filed an additional written statement alleging the removal of the fence and survey stones. The plaintiff is not in possession and enjoyment of stone revetment or any portion west of S.No.10. The plaintiff is not entitled to claim any relief. The trial court framed 4 issues and on behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-7 were marked and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to B-23 were marked. The report and plan filed by the Commissioner were marked as Exs.C-1 and C-2. The trial court decreed the suit and aggrieved against this, the defendants preferred A.S.No.23 of 1989 on the file of Additional District Court, Salem and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the defendants have come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the substantial question of law as Was not the lower appellate court in error in resting its conclusion solely on the ex parte Commissioner's report without adverting to the oral evidence tendered by the witnesses ?