C DORAIRAJ DIED Vs. O S M SALI

JUDGEMENT

(1.) The defendant in the suit is the appellant. After filing of the appeal, the defendant died and appellants 2 to 10 were impleaded as the legal heirs.

(2.) The case in brief is as follows:- The plaintiffs filed a suit for declaring that the 2nd schedule property belongs to them and for recovery of possession and mesne profits. The schedule property and Vandipettai north of the schedule property originally belonged to the family of the plaintiffs. There was partition between the plaintiffs and their sisters. The first schedule shop was allotted to their sister by name Mahaboobal Beevi. The north south measurement of the shop is 33 links and east west measurement is 29 links. The building was in the management of the 1st plaintiff. The first schedule property was leased out to the defendant for starting a flour grinding mill. Since the space was not sufficient, the defendant requested the 1st plaintiff to lease out a portion of Vandipettai, which is described as second schedule. The plaintiffs put up a shed in an area of 13-1/2 feet north south and 17-1/2 feet east west and leased out the same to the defendant. He also entered into a lease agreement for the entire schedule property with the 1st plaintiff and paying the rent. Subsequently, the defendant purchased the first schedule from the sister of the plaintiffs under a registered document dated 09.05.1984. But in the sale deed, he has clandestinely included the 2nd schedule property which belongs to their sister. The defendant has no manner of right in the second schedule property. Hence the suit. The defendant admitted that the sister of the plaintiffs originally leased out the property for running the grinding mill. Subsequently, plans were submitted to the authorities concerned for running the mill and the defendant is in occupation of the building for more than the statutory period. The building which was already in existence was purchased by him for a valuable consideration and he is a bona fide purchaser for value. The boundaries and the extent stated in the sale deed are correct and binding on the plaintiffs. There is no first schedule as alleged. The entire building is in one structure. There is no second schedule as alleged. The plaintiffs never constructed any shop and there was also no lease agreement. The defendant and his vendors have prescribed the title to the property. There is no clandestine inclusion in the sale deed. Mahabooba Beevi conveyed her property which was in the possession and enjoyment. The plaintiffs are not entitled to get any relief. The trial court framed 8 issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked and on the side of the defendant, he was examined as D.W.1 and no document was marked. The trial court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S.No.21 of 1990 on the file of Additional Sub Court, Tirunelveli and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendant has come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration: Whether the conclusion of the Court below that the defendant has not perfected title to the plaint second schedule property by adverse possession is correct in view of the admitted fact that the defendant is in possession of the said property from 1965 ?