MUTHAMMAL Vs. INDIRANI AMMAL

JUDGEMENT

(1.) THE present Second Appeal is preferred by the defendants against the judgment and decree passed by the first appellate Court which has reversed the judgment and decree of the trial Court.

(2.) WHEN the plaintiff/respondent herein has filed a suit for declaration of title and recovery of possession against the defendants/appellants herein on the ground that the plaintiff is the absolute owner of the land in question since the plaintiff/respondent herein has purchased the suit property under a duly executed registered sale deed dated 14.5.1964 and only in the course of her possession and enjoyment of the suit property, the plaintiff had permitted her brother-Balu Chettiar under leave and licence to put up a residential hut so as to stay there in the year 1978 and that Balu Chettiar-plaintiff's brother agreed to quit and deliver vacant possession of the property as and when required by the plaintiff/respondent herein. After the death of Balu Chettiar in the year 1984, the defendants/appellants herein were in possession and enjoyment of the suit property only on the basis of the leave and licence granted to late Balu Chettiar. The defendants/appellants herein are being close relatives of the plaintiff/respondent herein, the plaintiff did not disturb their possession from the suit property. But, however, when a notice dated 13.6.1986-Ex.A2 was issued by the plaintiff to the appellants herein asking them to deliver vacant possession, even after the receipt of the said notice-dated 13.6.1986-Ex.A.2, they refused to reply to the said notice. Subsequently, when the second notice dated 17.5.1988-Ex.A6 was sent to the defendants, after receipt of the said notice, a reply dated 29.5.88-Ex.A7 was sent by the defendants to the plaintiff/respondent herein denying the very ownership and title of the suit property. The defendants placed their case that the suit property was purchased by late Balu Chettiar in the name of sister-plaintiff and from the date of purchase, Balu Chettiar was in possession of the property by putting up a hut and after his death, the defendants continued in possession of the suit property and hence, they perfected their title by adverse possession by staying continuously to the knowledge of the plaintiff for more than the statutory period. But, the trial Court by accepting the claim of adverse possession pleaded by the defendants and also holding that the plaintiff failed to mention the extent of boundaries of the suit property, dismissed the suit.

(3.) (i) The learned counsel appearing for the appellants while advancing his arguments contended that when the plaintiff before the trial Court has clearly admitted the case of the defendants that they were in possession and enjoyment of the suit property from 1969 onwards, instead of accepting the admission made by the plaintiff that the defendants have been in possession from 1969, the trial Court having dismissed the suit for title and recovery of possession, the first appellate Court has wrongly reversed the reasoning given by the trial Court. Therefore, the learned counsel argued that the judgment and decree passed by the learned first appellate Court is absolutely untenable for the simple reason that when the case of the defendants was clearly admitted by the plaintiff, their adverse possession also should have been accepted. But, on the other hand, the first appellate Court has wrongly dismissed the case of the appellants and erroneously reversed the judgment and decree passed by the trial Court, hence such a finding is liable to be interfered with by this Court under section 100 C.P.C. (ii) Adding more, the learned counsel for the appellants further contended that though the defendants after receipt of the first notice dated 13.6.1986-Ex.A.2 asking them to deliver vacant possession, were unable to reply immediately, on receipt of the second notice dated 17.5.1988 (Ex.A.6), a proper reply dated 29.5.1988(Ex.A.7) was sent to the plaintiff/respondent herein, taking a substantial stand that the property in question was purchased by late Balu Chettiar, brother of plaintiff from his own income but in the name of his sister plaintiff and after the purchase, the defendants'/appellants' father Balu Chettiar has put up his own superstructure and after constructing his house, from 1964 onwards he had been in possession. He pleaded further that the Balu Chettiar has been in possession as an absolute owner and such exercise of the right of ownership was known to the plaintiff. Ignoring these legal aspects, the first appellate Court should not have dismissed the plea of adverse possession on the ground that the defendants/appellants herein have been in continuous possession without any interruption and they have established their continuous possession in the suit property atleast from the year 1964 onwards. (iii) While advancing his arguments on the first substantial question, the learned counsel appearing for the appellants would contend that the first appellate Court not only erred in law but also misdirected itself in granting the decree in favour of the respondent, when the appellants have acquired title to the suit property and the building situated therein by adverse possession by virtue of their open, long and continuous possession and enjoyment thereof for more than the statutory period adverse to that of the respondent especially when the respondent herein has failed to prove the theory of permissive occupation.