The above said second appeal arises against the judgment and decree in A.S.No.35 of 2005 on the file of Sub-court, Ranipet, Vellore District, confirming the judgment and decree in O.S.No.588 of 1995 on the file of the District Munsif cum Judicial Magistrate No.I, Wallajah.
2.The defendant in the suit is the appellant and the respondent is the plaintiff.
3.The plaintiff filed O.S.No.588 of 1995 for delivery of possession of the property described in the suit as 'B' Schedule.
4.The brief case of the plaintiff is as follows:
4.1.According to the plaintiff, the plaintiff and the defendant are the daughters of Sheik Jamalluddin Saheb. They had another sister by name Bibijan. By a deed of settlement dated 21.04.1975, the said Sheik Jamalluddin Saheb settled 'A Schedule property in favour of the plantiff. Since then, the plaintiff has been in possession and enjoyment of the property as absolute owner. The defendant was also given property by her deceased father situated at Bazaar Street Lane known as Mosque Street and Vinayagar Koil Lane, Ponnal Village under a settlement dated 26.12.1980. The other sister namely Bibijan was given another property by her deceased father by a registered Will dated 07.05.1985. Therefore, the said Sheik Jamalluddin Saheb provided three properties to his three daughters.
4.2.The plaintiff at the request of the defendant, provided accommodation in the rear portion of her 'A' Schedule property which is described as 'B' Schedule to her. The 'B' Schedule property was also occupied by the defendant in the year 1991 with the leave and licensee of the plaintiff. Since the defendant failed to vacate and deliver possession of the portion occupied by her, the plaintiff revoked the leave and license granted in her favour.
4.3.By a notice dated 22.05.1995, the license granted in favour of the defendant was revoked by the plaintiff. The defendant recently obtained separate electric service connection and also a patta for the said portion occupied by her as a licensee. Therefore, the plaintiff filed the suit for recovery of possession.
5.The brief case of the defendant is as follows:
5.1.The defendant denies the averments that she is in occupation of the 'B' Schedule property as the leave and licensee. She is in possession and enjoyment of the portion for the past 23 years (i.e) even prior to the alleged settlement deed and even during the life-time of her father namely Sheik Jamalluddin Saheb. The defendant is in possession and enjoyment of the said property continuously and she had perfected title over the same by way of adverse possession. The plaintiff had executed a registered lease deed dated 09.05.1965 in favour of the defendant in the presence of witnesses and mediators. The defendant is in possession and enjoyment of the property as a owner of the property and not as a licensee. Therefore, the defendant prayed for dismissal of the suit.
6.Before the Trial Court, on the side of the plaintiff, two witnesses were examined and 23 documents Ex.A-1 to A-23 were marked. On the side of the defendant, three witnesses were examined and 3 documents Ex.B-1 to B-3 were marked. The Trial Court after taking into consideration, the oral and documentary evidence of both the parties, decreed the suit. Aggrieved over the judgment and decree of the Trial Court, the defendant preferred appeal in A.S.No.35 of 2005 on the file of the Sub Court, Ranipet and the lower Appellate Court also after taking into consideration of the merits of the case, confirmed the judgment and decree of the Trial Court and dismissed the appeal.
7.Aggrieved over the judgments and decrees of the Courts below, the defendant has filed the above second appeal.
8.Heard Mr.T.Dhanasekaran, learned counsel appearing for the defendant/appellant and Mr.R.Vasudevan learned counsel for Mr.R.N.Kothandaraman appearing for the plaintiff/respondent.
9.The appellant has raised the following substantial questions of law:
"(a) Are the Courts below correct and justified in decreeing the suit?
(b) Are the Lower Courts correct and justified in negative the case of defendant regarding claim based on adverse possession?
(c) Whether the Lower Appellate Court correct in dismissing I.A.No.125 of 2005 in A.S.No.35 of 2005 without considering Supreme Court Judgment in 2004 (2) CTC 477 SC for additional evidence?
10.On a careful consideration of the materials available on records and the submissions made by both the learned counsels, it could be seen that the appellant, the respondent and one Bibijan are the daughters of one Sheik Jamalluddin Saheb. The said Sheik Jamalluddin Saheb executed Ex.A-1 settlement deed dated 21.04.1975 in favour of the respondent. He had also executed a settlement deed dated 26.12.1980 in favour of the appellant in respect of the another property. He had executed a registered Will dated 07.05.1985 in favour of the other daughter, Bibijan, in respect of another property. Thus, the said Sheik Jamalluddin Saheb has provided three properties to his three daughters separately.
11.The attestor to Ex.A-1 Settlement Deed was examined as DW-2. Admittedly, Ex.A-1 settlement deed was not cancelled by the said Sheik Jamalluddin Saheb during his life-time. From the documents produced by the plaintiff/respondent, it is clear that she is the absolute owner of the suit properties. Though the appellant/defendant pleaded adverse possession in the written statement, she failed to prove that she is in possession of the property for more than the statutory period, therefore, she failed to prove the plea of adverse possession.
12.Before the lower Appellate Court, the appellant/defendant filed an application in I.A.No.125 of 2005 seeking to file two additional documents, namely (1) unregistered settlement deed in favour of the appellant/defendant and (2) a document to show that the service connection was in the name of the defendant. The settlement deed produced by the appellant/defendant is an unregistered document executed in her favour. The appellant also failed to prove that the said documents through any acceptable evidence. The lower appellate Court rightly dismissed the said application. The appellant/defendant also failed to prove that she was in possession of the 'B' Schedule property for more than 40 years as averred by her. On the other hand, the plaintiff/respondent clearly proved that she is the absolute owner of the suit property. Therefore, the courts below have rightly decreed the suit.
13.In these circumstances, I find no ground much less substantial questions of law to interfere with the concurrent findings of the Courts below. Hence, the second appeal is liable to be dismissed. Accordingly, the second appeal is dismissed. However, there will be no order as to costs.