High Court of Madras

Suryamurthy and Ors. Vs. D. Mohamed Yasi Maraicoir and Ors.

MANU/TN/4146/2017

18.12.2017

Property

Unless possession of a party is adverse to rights of real owners, plea of adverse possession should not be accepted

Appeal arises against the judgment and decree passed in Additional District Court. The Plaintiffs filed the suit for declaration, for recovery of possession and for mesne profits 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.

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. D.W.1 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.

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. Unless the possession of a party is adverse to the rights of the real owners, the plea of adverse possession should not be accepted.

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 Exhibits proved their title and that they are entitled for possession of the property. The trial Court has rightly decreed the suit. There is no reason to interfere with judgment of Trial Court.

Tags : Title Adverse possession Rights

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