M. Duraiswamy JUDGMENT
M. Duraiswamy, J.
1. The above appeal arises against the judgment and decree passed in O.S. No. 25 of 1999 on the file of the Additional District Court, Karaikal.
2. The 1st defendant is the 1st appellant, who died during the pendency of the appeal and his legal representatives were brought on record as the appellants 2 & 3. The respondents 1 to 12 are the plaintiffs 1 to 12. The 13th respondent is the 2nd defendant in the suit. The 7th respondent had died during the pendency of the appeal and his legal representatives were brought on record as respondents 14 to 16. The 1st respondent/1st plaintiff also died during the pendency of the appeal and his legal representatives were brought on record as the respondents 17 to 22.
3. The plaintiffs filed the suit in O.S. No. 25 of 1999 for declaration, for recovery of possession and for mesne profits.
4. The brief case of the plaintiffs is as follows:
(i) According to the plaintiffs, the suit property, which is a small part of a large extent of an Estate known as Pana.Ena.Pannai in Keezhakasakudi Village. This Estate was inherited by two brothers P.E. Thaha Maricar and P.E. Mohamed Maricar, until the death of the elder of the two P.E. Thaha Maricar and the property was not divided between them. The property was possessed and managed by the owners jointly and through Pannai Kariasthar.
(ii) On 31.12.1973, under a registered Deed of Partition, the legal representatives of P.E. Thaha Maricar and P.E. Mohamed Maricar partitioned the property and took separate possession of the properties allotted to them in the said Partition Deed. Subsequently, the Nanja lands that fell to the share of P.E. Thaha Maricar were partitioned amongst the daughters and sons. By a Deed of Release dated 13.09.1991, three daughters of P.E. Thaha Maricar released their rights in the property in favour of their brothers, through their mother Zoharan. The suit property was enjoyed by the owners by permitting the Kariasthar and those who work under them to occupy the portions. The licensees were occupying the properties at the pleasure of the owners and rendering some kind of service to the owners.
(iii) The entire extent of suit property is 36 kuzhis, out of which, 11 kuzhis on the Northern side is being occupied by one Ganesa Asari under the lease and license from the plaintiffs. The remaining extent of 25 kuzhis, which is the suit property, was allowed to be used by one Devadass Pillai about 50 years ago. The said Devadass Pillai was working with the Pannai for a large time. The 1st defendant is the relative of Devadass Pillai. After the death of Devadass Pillai, the 1st defendant is occupying the property. The 2nd defendant is related to the 1st defendant. Both the defendants are in occupation of the property for a long period and they had always recognised the title and ownership of the plaintiffs over the suit property. The patta stands in the name of the plaintiffs.
(iv) The 1st defendant filed a suit in O.S. No. 327 of 1995 on the file of the Principal District Munsif Court, Karaikal for recovery of possession against the 2nd defendant. The suit was decreed on 20.12.1996 and the appeal was also dismissed in favour of the 1st defendant. The defendants are not legitimate owners of the property. By notice dated 11.10.1997, the plaintiffs terminated the license and called upon the defendants to vacate the suit property. The 1st defendant sent a reply on 03.11.1998. Devadass Pillai never did any act adverse to the interest of the plaintiffs. In these circumstances, the plaintiffs filed the suit.
5. The brief case of the 1st defendant is as follows:
(i) According to the 1st defendant, he is in long and continuous possession of the suit property and prescribed title by adverse possession. According to the 1st defendant, Devadass Pillai is his father's brother. The mere fact that the said Devadass Pillai was working in the Pannai cannot establish ownership with the plaintiffs. The said Devadass Pillai enjoyed the suit property without any protest by the alleged owners. After the death of Devadass Pillai in the year 1972, the defendant continues to enjoy the suit property in his own right living in the house with his family. The defendant by himself became the owner of the suit property by long and continuous possession for over 28 years subsequent to the death of Devadass Pillai.
(ii) The 1st defendant filed a suit in O.S. No. 327 of 1995 against the 2nd defendant for evicting him from a portion of the suit property. The plaintiffs and their predecessors have slept over the right for over 58 years and thus, they have lost their right. There is no licence at all, hence, there cannot be any revocation of the license. The findings given in O.S. No. 327 of 1995 is binding on the plaintiffs. In these circumstances, the 1st defendant prayed for dismissal of the suit.
6. Before the trial Court, on the side of the plaintiffs, 3 witnesses were examined and 5 documents, Exs. A1 to A5 were marked. On the side of the 1st defendant, he was examined as D.W.1 and 13 documents, Exs. B1 to B13 were marked. The trial Court, after taking into consideration the oral and documentary evidences let in by both the sides, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the 1st defendant has filed the above appeal.
7. Heard Mr. M.S. Velusamy, learned counsel appearing for the appellants and Mr. A.K. Kumarasamy, learned Senior Counsel appearing for the respondents 2 to 6, 8 to 12, 14 to 22.
8. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that there is no dispute with regard to the title of the plaintiffs' predecessors. According to the plaintiffs, one Devadass Pillai, who was their Kariasthar was allowed to occupy the suit property as a permissive occupant and in turn, he allowed the 1st defendant to occupy the suit property as a permissive occupant. The 2nd defendant was put in possession of a portion of the suit property by the 1st defendant and subsequently, by virtue of the decree passed in O.S. No. 327 of 1995, he took back the possession from the 2nd defendant.
9. The contention of the plaintiffs is that the 1st defendant is occupying the premises as a licensee and therefore, they are entitled to get back the possession from him. The 1st defendant contended that he is in continuous possession and enjoyment of the suit property since 1972 and therefore, prescribed title by adverse possession. Therefore, the issue that has to be decided is whether the 1st defendant is a licensee or he had prescribed title by adverse possession?
10. So far as the suit filed by the 1st defendant in O.S. No. 327 of 1995 against the 2nd defendant is concerned, it was filed by the 1st defendant for recovery of possession. The suit was decreed and the appeal preferred by the 2nd defendant was also dismissed. Admittedly, the plaintiffs are not parties to the said suit. That being the case, the findings given in the said proceedings are not binding on the plaintiffs in any manner whatsoever.
11. On a perusal of the evidence of D.W.1, it could be seen that the 1st defendant had deposed that in the year 1941, Devadass Pillai was inducted as a Kariasthar in the Pannai and that he is a close relative of the said Devadass Pillai. Further, D.W.1 has stated that when he was six years old, in the year 1949, he came to Devadass Pillai's house and he is residing in the said place since then. Further, he has specifically stated that he stayed in the suit property with Devadass Pillai for his education and he continues to be in possession of the suit property in the same capacity. D.W.1 has also stated that he was not aware of the Release Deed executed by the plaintiffs' sisters. He has also stated that he is not in possession of the property, adverse to the rights of the owners of the suit property.
12. On a reading of the evidence of D.W.1, it is clear that he has deposed that his possession is not adverse to the rights of the real owners and he was inducted into possession of the suit property by Devadass Pillai in the year 1949. He has also stated that he continues to be in possession of the property in the same capacity as he was put in possession of the property in the year 1949.
13. From the evidence of D.W.1, it is also clear that the owners of the suit property have permitted Devadass Pillai to occupy the suit property since he was doing Kariasthar job in the Pannai. Devadass Pillai's brother's son is the 1st defendant. For the purpose of education, the 1st defendant stayed with Devadass Pillai, since Devadass Pillai had no issues. Therefore, the possession of 1st defendant should also be construed as a permissive occupation and he himself admitted that he continues to be in possession of the suit property in the same capacity.
14. Unless the possession of a party is adverse to the rights of the real owners, the plea of adverse possession should not be accepted.
15. In the present case, D.W.1 has stated that his possession is not adverse to the real owners and that he is also not thinking so. The plea of adverse possession should be pleaded and proved by the 1st defendant by adducing oral and documentary evidences. Though the 1st defendant is in possession of the property for a long time, his possession is not adverse to the plaintiffs. In the absence of any evidence with regard to the plea of adverse possession, the trial Court has rightly decreed the suit. The plaintiffs, by examining P.W. 1 to P.W. 3 and producing Exs. A1 to A5 proved their title and that they are entitled for possession of the property. The trial Court has rightly decreed the suit.
16. In these circumstances, I do not find any ground to interfere with the judgment and decree of the trial Court. The appeal is liable to be dismissed. Accordingly, the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
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