Professional Documents
Culture Documents
DATED: 17/09/2010
Vs.
1. Abdul Razack
2. Selva Mohammed .. Respondents
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:JUDGMENT
The Second Appeal is filed by the third defendant against the
judgment and decree dated 16.11.1998 in A.S.No.1 of 1998 on the file of
the Subordinate Court, Sivagangai, confirming the judgment and decree
dated 15.04.1996 in O.S.No.209 of 1993 on the file of the District Munsif
Court, Manamadurai.
(ii) A.I.R. 1984 NOC 300 (A.P.) (Y.Subba Rao (died) and others Vs
Amizunnisa Begum and others)
"Held, the approach of the Court in appointing a Surveyor for the
purpose
of going into the question whether the applicants have purchased the
same property which is now in the possession of the distributor and to
decide the dispute with regard to the survey number of suit property was
erroneous. As regards the dispute with regard to survey of suit property
the Court below failed to note the well-known proposition that clear
boundries as to the identity of the property prevail over any mistake in the
survey number."
The person who pleaded adverse possession must prove that there is
'Animus Possidendi'. He also relied upon the decision reported in A.I.R.
1999 SC 1549 (Indira Vs Arumugam and another) wherein the Hon'ble
Supreme Court has held as follows:
4. The aforesaid reasoning of the learned Judge, with respect, cannot
be sustained as it proceeds on the assumption as if old Article 142 of the
earlier Limitation Act was in force wherein the plaintiff who based his case
on title had to prove not only title but also possession within 12 years of
the date of the suit. The said provision of law has undergone a
metamorphic sea change as we find under the Limitation Act, 1963 Article
65 which reads as under:
Description of suit Period of Limitation Time from which period begins to
run 65. For possession of immovable property or any interest therein
based on title
Twelve years When the possession of the defendant becomes adverse
to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title for
possession, once the title is established on the basis of relevant
documents and other evidence unless the defendant proves adverse
possession for the prescriptive period, the plaintiff cannot be non-suited.
Unfortunately, this aspect of the matter was missed by the learned Judge
and, therefore, the entire reasoning for disposing of the second appeal has
got vitiated. Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge for
disposing of the second appeal, this appeal is allowed. The impugned
decision rendered is set aside and the second appeal is restored to the file
of the High Court with a request to proceed further with the hearing of the
appeal with respect to the substantial question aforementioned in
accordance with law. No costs.
28 So, the first appellate Court and the trial court considered all
the aspects in proper perspective and came to the correct conclusion that
the third defendant/ appellant herein has not prescribed title by adverse
possession. The plaintiffs/respondents herein has purchased the property
under Ex.A1 even though it was mentioned as S.No.169/6. It is only
related to S.No.169/11 as per the well settled principle of law that
boundary will prevail over the survey number and extent of a property.
Hence, that aspect has been corroborated by P.W.2. P.W.2 in his evidence
has stated that the property in S.No.169/6 is belongs to him. He executed
a simple mortgage in favour of one Koothakkal under Ex.A4.
Subsequently, he sold the same under Ex.A5 on 10.11.1986 to one
Periyasamy. So P.W.2 has proved that the suit property is only under
S.No.169/11. Hence, the trial court and the first appellate court
considered all the materials on record in proper perspective and came to
a correct conclusion. Hence, Judgment and decree of both the Court below
does not suffer any irregularity or infirmity. Hence, it does not warrant any
interference by this court and the appeal is liable to be dismissed.
To
1. The Subordinate Court, Sivagangai,
2. The District Munsif Court, Manamadurai.
3. The Record Keeper, V.R. Section, High Court, Madras.