KARMEGA KONE Vs. UDAYAR KONE AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 67 of 1970 on the file of the Court of the District Munsif of Ramanathapuram is the appellant herein. The plaintiffs came to Court for a declaration of their title to the suit property and for a permanent injunction restraining the first defendant, who is the grandson of the second defendant, and also the second defendant, from interfering with the plaintiffs' possession of the suit property, or, in the alternative, for recovery of possession. Both the Courts found that the plaintiffs -respondents were entitled to the suit property. The trial Court was, however, of view that, not withstanding such vesting of title in the plaintiffs they had lost it, because the defendants were adversely in possession of the suit property for the prescribed time as against the true owners and that therefore the plaintiff were net entitled to either possession or declaration as prayed for. On appeal, however, the appellate Court noticed that there was no plea as to adverse possession as required in law and therefore held that, in the absence of such a pleading, the appellant -defendant could not succeed on a bare story of entitlement on the basis of adverse possession trotted out in the course of the trial. In that view, the appellate Court allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit as prayed for. The first defendant has filed the present appeal as against the said judgment.

(2.) THE only question which arises for consideration is whether a litigant, without expressly setting up a plea of adverse possession, can succeed on such a circumventory title, even though the litigant is unable to prove his basic and real title to the property under litigation. Following the judgment of the Supreme Court in Karim v. Bibi Sakina : [1964] 6 SCR 780, wherein the Supreme Court had observed that not only should there be proof of continuity, publicity and extent while setting up a plea of adverse possession, but such a plea should also be expressly pleaded to show as to when possession became adverse as against the real owner, so that the starting point of limitation against the party affected, could be found, and the rights of parties adjudicated upon, the appellate Court reversed the judgment of the trial Court.

(3.) THE judgment of the appellate Court is right. The second appeal does not pose any other question of law. The second appeal is accordingly dismissed. There will be no order as to costs.