The the legal heirs of the deceased plaintiff are the appellants herein.
2. The suit was filed for declaration of title and also for delivery of possession.
3. The Trial Court decreed the suit as prayed for, but, the first appellate court upset the findings of the Trial Court and non-suited the plaintiff and therefore, the legal heirs of the deceased plaintiff are before this court by way of second appeal.
4. The plaintiffs have contended that the suit A schedule property originally belonged to one Muthammal wife of Subburaya Pathar. Muthammal and her husband Subburaya Pathar died without issues. The plaintiffs, being the children of Mathura Pathar, the brother of Subburaya Pathar being the second class heirs of Muthammal, are entitled to the said A schedule property. Muthammal sold away only B schedule property to the first defendant by virtue of sale deed dated 30.4.1973. It is alleged that the defendants trespassed upon A schedule property and started plucking fruits from the tamarind tree situated in the A schedule property. Hence, the suit for declaration of title, delivery of possession with respect to A schedule property and also for mesne profits.
5. The defendants resist the claim of the plaintiffs on the ground that they have purchased the entire 4 cents of land for a consideration of Rs.300/= by virtue of sale deed dated 30.4.1973 from Muthammal. Further, the defendants set up a plea that they prescribed title by adverse possession over a period of 12 years. Therefore, the plaintiffs are not entitled to any relief as sought for.
6. The Trial Court, having adverted to the evidence on record, returned a finding that the plaintiffs are entitled to the reliefs as prayed for. The Trial Court, having referred to the evidence of PW2, the Maniyakarar of the village, in the background of the evidence of PW1 that the plaintiffs are the second class heirs of Muthammal and Ex.B2, the sale deed executed by Muthammal in favour of the first defendant, held that only three cents of land excluding the tamarind tree were conveyed under Ex.B2 to the first defendant by Muthammal. The Trial Court also rejected the plea of adverse possession set up by the defendants as it was not shown that they have been in possession and enjoyment of the property for over a period of 12 years. The first appellate court, without adverting to the evidence of PW2, the Maniyakarar of the village and the specific recital found in Ex.B2, simply upset the judgment of the Trial Court and held that the first defendant has purchased the entire property of Muthammal, who got assignment under Ex.B1. Very casually, the first appellate court made an observation without actually looking into the period during which the defendant enjoyed the property that the defendants already prescribed title to the suit property.
7. The following substantial question of law was framed by this court at the time of admission of the second appeal:-
"Whether the first appellate court erred in law in not holding that the onus of proving the case lies with the defendant in view of the plea that the plaintiffs are not legal heirs of the deceased Muthammal?"
8. Learned counsel appearing for the plaintiffs would submit that the first appellate court did not care to go through the tenor of the sale deed, Ex.B2 which specifically states that only 3 cents of land was meant to be conveyed and the tamarind tree was excluded from the purview of the sale transaction. The first appellate court made a very casual approach in upsetting the verdict of the Trial Court. It is his further submission that the defendants had not specifically denied the second class heirship of the plaintiffs in the written statement filed by them. Even assuming that there is a general denial of the second class heirship claimed by the plaintiffs, the evidence of Maniyakarar, who was examined as PW2, clinches the issue as to the second class heirship claimed by the plaintiffs. As regards the adverse possession claimed by the defendants and upheld by the first appellate court, the learned counsel appearing for the appellants would submit that the first appellate court, without going into the actual period during which the defendants have been in possession of the suit property, returned a verdict that the defendants also prescribed title by adverse possession for over a period of 12 years.
9. Learned counsel appearing for the defendants would submit that the boundary recited in the sale deed covers four cents of land and the tamarind tree located over there. The boundary will prevail over the extent referred in Ex.B2. It is her vehement submission that the Trial Court had simply put the onus on the defendants to establish the plea of second class heirship claimed by the plaintiffs. The burden of proving adverse possession was also shifted to the defendants, it is submitted. There is virtually no documentary proof to establish that the plaintiffs are the second class heirs of the deceased Muthammal to make any claim over the suit property, it is submitted.
10. Muthammal got assignment of the suit A and B schedule properties under the assignment deed Ex.B1 dated 17.4.1968. What has been assigned under Ex.B1 by the Government is 4 cents of land. The first defendant purchased under Ex.B2 dated 30.4.1973 only an extent of 3 cents. No right or title over the tamarind tree was conveyed under Ex.B2. As regards the extent of property and the exclusion of the right and title over the tamarind tree, the sale deed, Ex.B2 is very specific. Of course, the boundary found in Ex.B2 is for a larger area of the property covered even under Ex.B1. When specific extent of the property has been given and the exclusion of the right and title over the tree found in the property has also been referred to in the sale deed, the defendant cannot set up a plea that the boundary would prevail over the extent.
11. Coming to the adverse possession claimed by the defendant, it is a well settled position of law that the defendant who sets up the plea of adverse possession prescribing title over the suit property will have to establish by producing substantial evidence that he has been in possession and enjoyment of the property for over a period of twelve years as against a private party. The first defendant purchased the suit property only on 30.4.1973. The plaintiffs filed the suit as against the defendant on 17.4.1985 itself. Even assuming that the defendants have been in possession of the suit property and started enjoying the usufructs of the tamarind tree right from the date of purchase of the suit property from Muthammal, their possession and enjoyment falls short of 12 years which is the prescribed period to establish title by adverse possession. As rightly pointed out by the learned counsel appearing for the appellants, the first appellate court had not cared to calculate even that period to arrive at a conclusion as to whether the defendant has prescribed title by adverse possession.
12. Coming to the legal heirship claimed by the plaintiffs, the Trial Court has given a categorical finding relying upon the evidence of Maniyakarar of the village, PW2 in the background of the evidence of PW1 that the plaintiffs are the second class heirs of Muthammal. No reason was assigned by the first appellate court to upset such a finding of the Trial Court. A very casual approach has been made by the first appellate court to upset such a finding. It is true that the plaintiffs have not produced any document to establish that they are the second class heirs of Muthammal. Considering the village settings from which the case has emanated, I find that much weight and credence have to be given to the evidence of Maniyakarar of the village, PW2 to speak about the legal heirship of the plaintiffs.
13. The plaintiffs have established that the first defendant purchased only 3 cents out of 4 cents originally owned by Muthammal excluding the tamarind tree. The defendants failed to establish that they perfected title by adverse possession. The second class heirship of the plaintiffs also has been established by examining Maniyakarar of the village, PW2.
14. In view of the above, the perverse judgment of the first appellate court deserves interference. Therefore, setting aside the judgment of the first appellate court, the judgment of the Trial Court stands confirmed. As a consequence, the second appeal stands allowed. There is no order as to costs.
ssk.
To
1. Subordinate Judge, Villupuram, Villupuram Ramasamy Padayachi District.
2. District Munsif, Thirukovilur, Villupuram Ramasamy Padayachi District