The above Second Appeal arises against the judgment and decree in A.S.No.80 of 1998 on the file of Principal District Court, Villupuram confirming the Judgment and Decree in O.S.No.814 of 1993 on the file of Principal District Munsif, Villupuram.
2. The plaintiff in the suit is the appellant in the above second appeal. The respondents are the defendants in the suit.
3. The plaintiff filed the suit in O.S. No.814 of 1993 on the file of Principal District Munsif, Villupuram for the following relief:
(i) Declaring the plaintiff is the absolute owner of the suit A & B schedule property;
(ii) for permanent injunction restraining the defendants and their men, agents, servants in any way interfering the peaceful possession and enjoyment of A schedule property;
(iii) for recovery of possession of the B Schedule property; and
iv) cost of the suit.
4. The brief case of the plaintiff is as follows:-
(i) According to the plaintiff, originally the suit property is the ancestral property of Santana Mudaliar, whose fore-fathers were in enjoyment of the suit property for the past 100 years. After the death of Santana Mudaliar, the legal heirs sold the property in favour of the plaintiff.
(ii) According to the plaintiff, he purchased the suit property from Santhanam, Krishnan and others on 6.8.1990 and he is in enjoyment of the property since then and that the plaintiff was issued a patta in respect of suit property. After issuance of patta, the plaintiff paid the kist to the Government.
(iii) According to the plaintiff, he prescribed title by adverse possession. The defendants are the adjacent owners of the suit property. The first defendant's husband is the second defendant. Since they attempted to trespass into the suit property and take forcible possession of the property, the plaintiff had filed the suit for declaration and injunction. Further, the plaintiff came to know that the defendants encroached B schedule property. Hence, the plaintiff prayed for recovery of possession of B schedule property.
5. The brief case of the defendants is as follows:
According to the defendants, the first defendant ownes a house on the south of the plaintiff's property by a deed of sale dated 28.1.1963. The father of the second defendant purchased a site measuring 40' x 20'. On the south of the property purchased by the father of the second defendant, one Kannammal owned a house constructed within a site measuring 40' x 20'. The said Kannammal sold the house property to the first defendant by a deed of sale dated 27.1.1982. The father of the second defendant, Ranganathan died on 29.1.1975 leaving behind the second defendant alone his legal heir. Thus, both the defendants have became the owners of the propertymeasuring 40 feet east to west and 40 feet north to south. Subsequently, the defendants demolished the thatched roof in both the houses and put up a single roof over the two houses making it into a single unit. That according to the defendants, while making a single unit, the defendants left out portion measuring about 2 feet north to south and 40 feet east to west for the rain water to fall from the roof. Therefore, the defendants denied the claim of the plaintiff that the plaintiff and his predecessors in title have been in possession of the property for more than 100 years. According to the defendants, they prescribed title by adverse possession on the northern side. The defendants also disputed that the plaintiff's title and possession over the property. According to the defendants, the plaintiff had purchased the property with wrong measurements. Therefore the defendants prayed for dismissal of the suit.
6. Before the trial court, the plaintiff examined 2 witnesses and marked 7 documents Exs. A-1 to A-7. On the side of the defendants, 2 witnesses were examined and four documents Exs.B1 to B4 were marked. The Commissioner's report and plan were marked as Exs. C1 and C2.
7. The trial court after taking into consideration the oral and documentary evidences of both the parties, dismissed the suit. Aggrieved over the judgment and decree of the trial court, the plaintiff preferred an appeal in A.S.No.80/98 on the file of Principal District Court, Villupuram and the first appellate court after taking into consideration the materials available on record, confirmed the judgment and decree of the trial court and dismissed the appeal.
8. Aggrieved over the judgments and decrees of the courts below, plaintiff had preferred the above second appeal.
9. Heard Mr. Mr.A.K.Kumaraswamy, learned counsel appearing for the appellant and Mr.T.Dhanyakumar, learned counsel appearing for the respondents.
10. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:-
" When the defendants have admitted the claim of plaintiff to an extent of 86' x 34', is the courts below justified in dismissing the entire suit? "
11. The contention of the learned counsel for the appellant is that D.W.2 himself admitted the possession and enjoyment of the suit property, by the appellant/plaintiff. But the said admission alone cannot be taken for deciding the title and possession of the appellant. In the decision reported in 1997(3) LW 888 (Palanisamy Konar v. Gopala Konar and 8 others) it is held as follows:
"Admission alone by a party cannot confer title to a property, when statue requires a deed, it will only receive the burden to proof, want of title in person, in whose favour the admission is made."
Therefore, mere admission by D.W.2 is not sufficient to prove the title and possession of the appellant/plaintiff.
12. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that under Ex.B1 and B2 sale deeds, the respondents/defendants purchased a title to an extent of 40 feet east to west and 40 feet north to south. In Ex.B3, the decree in O.S.No.1443 of 1979, it could be seen that the vendor of the defendants/respondents is entitled to 20' X 40'. The decree was confirmed in A.S.No.214 of 1982 which was marked as Ex.B4. It could be seen that the appellant/plaintiff initially filed a suit for declaration and for permanent injunction in respect of A schedule property. Subsequent to the Commissioner's report, he included the prayer for recovery of possession in respect of B schedule property. There is no averment in the plaint with regard to the dispossession of the B schedule property and also there is no evidence with regard to the same. Therefore, the prayer for recovery of possession is liable to be rejected. Further, there is no evidence on the side of the plaintiff that he purchased the entire extent of the suit property. The Advocate Commissioner's finding with regard to the encroachment is unwarranted. The appellant failed to prove his case by any acceptable evidence. The burden is on the plaintiff to prove his case. Even the measurement mentioned in Ex.A1 sale deed and the suit schedule measurement differ. Therefore, the plaintiff has not discharged his burden of proving his case. Therefore, the findings of the courts below are just and proper.
13. Therefore, I find no ground much less substantial question of law to interfere with the finding of the courts below. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there will be no order as to costs.