Second Appeal is filed under Section 100 of the Civil Procedure code, against the Judgment and decree dated 26.07.2000 and made in A.S.No.42 of 1999 on the file of Additional District Judge, cum-Chief Judicial Magistrate, Tuticorin, confirming the Judgment and decree dated 04.02.1997 in O.S.No.46 of 1995 on the file of Additional District Munsif, Tuticorin.
2.The Plaintiffs/appellants have filed the suit against the respondents for declaration and the injunction with reference to the suit property.
3.The case of the appellants is that his grand-father had purchased the property in the year 1951 by way of oral sale. Subsequently, appellants' father had taken up the possession of the property and enjoyed continuously. After his demise the plaintiffs' father and the brothers of appellants/plaintiffs' father had enjoyed the property. Now the appellants alone are enjoying the property.
4. The case of the respondents is that they have not sold the property to grand-father of the appellants. The oral sale has not been proved and that the property was in continuous enjoyment of the ancestors of the respondents.
5. After completion of the pleadings, the trial court had framed the following issues.
1.Whether plaintiffs are entitled to get declaratory relief?
2.Whether plaintiffs are entitled to get relief of permanent injunction as prayed for in the plaint ?
3.To what other relief, the plaintiffs are entitled to?
In order to prove the case of the plaintiffs, on the side of the appellants/plaintiffs, PW1 to PW5 were examined and Ex.A1 to Ex.A14 were marked and on the side of the respondents/defendants, two witnesses were examined and Ex.B1 to Ex. B6 were marked.
6. Considering the oral and documentary evidence, the Trial Court had come to the conclusion that the appellants/plaintiffs have not proved the oral sale and also have not proved the adverse possession. Therefore, the suit was dismissed.
7. Aggrieved by the judgment and decree passed by the Trial Court, the appellants/ plaintiffs have filed an appeal before the Additional District Judge, cum-Chief Judicial Magistrate, Tuticorin in A.S.No.42 of 1999.
8. After hearing both the learned counsel and considering the judgment of the Trial Court the First Appellate Court had framed the following points for determination:
1.Whether the oral sale is true and legally valid?
2.whether the suit property belongs to the appellants as claimed by them?
3.whether the appellants are entitled to title by adverse possession?
4.whether the property is belongs to the defendants?
5.whether the appellants are entitled to get the relief of declaration and permanent injunction as prayed for?
9. After considering the submission made by both the counsel and also on perusal of oral and documentary evidence placed before the Court and Judgment of the Trial Court, the First Appellate court has come to the conclusion that the appellants/plaintiffs failed to prove the oral sale and possession. Though they have pleaded for adverse possession. The appellants have not established their title by adverse possession and therefore the first appellate court dismissed the First Appeal and confirmed the judgment and decree passed by the Trial Court.
10. Aggrieved by the judgment and decree of the First Appellate Court in A.S.No.42 of 1999 the appellants/plaintiffs have filed the present second appeal and at the time of admission, this Court has framed the following substantial questions of law.
(a) Whether the Courts below erred in law in holding that the plaintiffs have not proved their oral sale without assessing and evaluating the oral evidence of PW-2 to PW-4 which clearly establish that there was a oral sale of the suit property by Ayyasamy Nadar in favour of Brahmayya Nadar?
(b) Whether the Courts below erred in law in rejecting the plea of adverse possession raised by plaintiffs without considering the evidence particularly documentary evidence let in by the plaintiffs to establish their case of adverse possession from the days of their grand-father?
11. As the second appellate court at this stage it is only to answer for the substantial questions of law arises before this Court. The case of the appellants/plaintiffs is that they have proved the title by adverse possession, but the Trial Court and First Appellate Court failed to consider the oral and documentary evidence produced by the appellants/plaintiffs in this regard.
12.On careful perusal of the averment of the plaint putforth by the appellants before the Trial Court and statement filed by the respondents and also the decrees and judgments passed by the Courts below, show that it is the case of the appellants that originally their grandfather purchased the suit property in the year 1951 by way of oral sale subsequently he was continuously in possession and he paid ?Kist? and kist receipt are marked as Ex. A2 to A5 and PW2 to PW4, have spoken about the oral sale. After filing of the Additional Written statement they have pleaded the adverse possession. The learned counsel for the appellants would submit that the appellants have proved the oral sale by way of oral and documentary evidence through PW2 to PW4 and Exs. A2 to A5. The Trial court failed to consider the same and also dismissed the suit. The First Appellate Court also dismissed the appeal. Therefore the appellants are before this Court by way of second appeal. The case of the respondents is that though he denied the oral sale and also he denied the possession of the appellants and further they would submit that appellants/plaintiffs have failed to establish the oral sale and the possession as long as continuously for more than 12 years. The Courts below have correctly given findings that the appellants/plaintiffs have not established their title either by way of oral sale or by way of adverse possession.
13. Considering the rival submission made by both the counsel and oral and documentary evidence the judgment and decree passed by the Courts below though the appellants tried to establish their title from the oral and documentary evidence of PW2 -PW4 and Ex.A2-A5. Learned Counsel for the respondents would submit that the ?Kist Receipt? contains different Patta and the same are not for this suit property. The Courts below have correctly come to the conclusion that the appellants have not established the oral sale and their title. After framing the substantial questions of law this Court has to consider whether the appellants had established the long possession more than prescribed period as known to law they are enjoying the property. The appellants/plaintiffs have not proved that their grandfather had purchased the property by way of oral sale and even the date of purchase and the date of taking into possession have not been stated either in the pleadings or in the evidence. Therefore, they have failed to establish the same before the Courts below. Further with regard to the adverse possession, the witnesses have not clearly stated when appellants entered into the possession and with the knowledge of the owners of the property, they were in continuous possession for more than 12 years as their own and hostile to the original owners. On perusal of the Ex.P1 and oral and documentary evidence, admittedly there is no mutation taken place and patta has not been transferred in their name and there is no ?Adangal Receipts? and even on perusal of the Exs.A2 ? A4 as stated by the learned counsel for the respondents that the patta produced by them contains different number. Therefore the appellants have not established their title by adverse possession. Under the said circumstances, the Trial Court and the First Appellate Court had correctly held that the appellants/plaintiffs have not established that they have got title either by way of oral sale or by way of adverse possession.
14. The first appellate court is fact finding court considering the oral and documentary evidence it has given finding on facts. On careful consideration of material placed before this court as second appellant court it does not find any substantial question of law much less than question of law. Therefore, the second appeal is liable to be dismissed.
15. In the light of the above discussion, this Second Appeal is dismissed. The Judgment and Decree of Trial Court order are confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.
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