VAITHILINGA THEVAR Vs. VADIVEL ASARI

JUDGEMENT

(1.) THE unsuccessful plaintiff in both the Courts below is the appellant herein.

(2.) THE brief facts of the case are as follows: THE schedule mentioned property originally belonged to one Vairava THEvar and his minor brother Vaithilingam. THE uncle of the plaintiff Govinda THEvar purchased the property from the original owners by way of sale deed dated 17.10.1946. THE plaintiff got the suit schedule mentioned property bearing Survey No.18/8 of Paingal Village by way of partition between himself and his uncle Govinda THEvar. Ever since the date of partition, the plaintiff is in possession and enjoyment of the suit property and the plaintiff obtained patta to the said land. THE definite case of the plaintiff is that though the sale deed mentioned 35 cents, the real extent comprised in the said deed was 49 cents and situate in Survey Nos.18/8, 18/7 and 17/3. THE defendants are residing in the month of the suit property and the defendants are in no manner of right in the suit Survey Number 18/8 of Paingal Village. It is stated that already live Kiluvai fence was in existence between the plaintiff's land and the defendant's property. When the plaintiff attempted to plough the land on 17.11.1982, the defendants and others obstructed the plaintiff from ploughing the said thoppu. THE defendants have no manner of rights and they are not entitled to interfere with the possession and enjoyment of the plaintiff in respect of the suit property. THE plaintiff also lodged a police complaint at Peravurani Police Station. Since the defendants were disputing the title of the plaintiff, the plaintiff filed the present suit for the relief of declaration of title and for permanent injunction.

(3.) AT the time of admission, this Court has framed the following substantial questions of law for considering the second appeal. " (a) Whether the lower appellate Court is correct in not considering the question of adverse possession simply on the ground that it was not specifically pleaded even though the essential ingredients constituting adverse possession are given in the plaint. Vasudeva Padha Khedanga Garu v. Mugani Dewon Bakshi Matha Pantulu Garu I.L.R. 214 Mad. 387 (PC). " (2) Whether the lower appellate Court is right in not holding that possession in excess of the land covered under Ex.A-1 is possession by honest mistake and hence the appellant/plaintiff has prescribed title by adverse possession. Pavadai (alias) Selvaraj Chettiar v. Chinnasami Padayachi Selvaraj Chettiar v. Chinnasami Padayachi Selvaraj Chettiar v. Chinnasami Padayachi 93 L.W. 278.