Judgment :- 1. Defendants 7 to 9 are the appellants in the above Second Appeal. The respondent herein, plaintiff filed O.S. 699 of 1981 on the file of District Munsif. Coimbatore for partition of the suit property into two equal shares and allot one such share to the plaintiff and also directing the defendants to pay mesne profits at the rate of Rs. 810/- per annum. 2. The averments made in the amended plaint are briefly as follows:— The plaintiff and the Ist defendant (since deceased) are the children of one Palaniammal. wife of Krishnappa Servai. The suit property originally belonged to the said Palaniammal. Palaniammal purchased the Suit property as well as other properties by virtue of sale deed Ex. A1 dated 1-3-1981. From the date of purchase, the said Palaniammal was enjoying the suit property as absolute owner. Palaniammal died leaving the plaintiff and the Is t defendant as her sole legal representatives. After the death of Palaniammal, her husband also died. At the time of his death, he did not leave any property. Both the plaintiff and the 1st defendant were brought up by the said Palaniammal. The said Palaniammal died intestate in the suit house. After her death both the plaintiff and her brother, the Ist defendant have to succeed to the property left by Palaniammal in equal moities. The relationship between the plaintiff and the 1st defendant were cordial throughout. However, the said relationship became strained afterwards. Therefore, the plaintiff insisted the 1st defendant to make a partition of the suit property. The defendant did not do so. After knowing that the 1st defendant is not ready and willing to part with the property, the present suit has been filed for partition of her share. 3. During the pendency of the suit, the Ist defendant died. Defendants 7 to 9 have been impleaded as legal representatives of the 1st defendant. 6th defendant was exonerated, the defendants 2 to 5 are tenants under the 1st defendant who are occupying the suit houses. 4. The 5th defendant filed a written statement and the same was adopted by defendants 2 to 4, They contended that these defendants are tenants under the 1st defendant occupying different portions of the suit property. They were actually paying rents to the 1st defendant. According to them, they are unnecessary parties to the suit. 5. 4. The 5th defendant filed a written statement and the same was adopted by defendants 2 to 4, They contended that these defendants are tenants under the 1st defendant occupying different portions of the suit property. They were actually paying rents to the 1st defendant. According to them, they are unnecessary parties to the suit. 5. The 9th defendant filed a written statement and the same was adopted by defendants Nos. 7 and 8. In the said written statement, it is contended that the allegations of the plaintiff are false and unsustainable in law. It is true that late Palaniammal purchased the suit property and other properties. Soon after the purchase she sold away landed property to the extent of 2 acres. With the sale proceeds she constructed houses in a portion of the site. The house is bearing Door No. 50 in the Kurichi Town Panchayat. Apart from the said house late Palaniammal had no other property. Palaniammal died in the year 1946. After the death of Palaniammal, the 1st defendant was in exclusive possession of the house and site. Out of his own earnings she constructed five houses on the vacant site and all these houses bearing Door Nos. 49-A, 51, 52, 53 and 54 in the Kurichi Town Panchayat stand in the name of the Ist defendant. After the construction, the family occupied the house bearing Door Nos. 50 and 51. The Ist defendant then leased out their houses to various tenants. After the death of the 1st defendant, 9th defendant made improvements by spending Rs. 4,000/-. The plaintiff had been married during the life of Palaniammal and was amply provided for. After the death of Palaniammal. i.e. in the year 1946, she did not ask for partition of the property left by the late Palaniammal. Therefore, the 1st defendant was in uninterrupted possession of the suit property as owner. He was enjoying the suit property for over 33 years till his death. Therefore, the plaintiffs right, if any, had become extinguished by adverse possession and prescription. In fact, she was a not a co-owner with the Ist defendant nor could she claim any co-ownership. Therefore, she is not entitled to claim any partition. The entire suit property belonged to the Ist defendant and after his death, the said properties devolved on the defendants 7 to 9 as his heirs. In fact, she was a not a co-owner with the Ist defendant nor could she claim any co-ownership. Therefore, she is not entitled to claim any partition. The entire suit property belonged to the Ist defendant and after his death, the said properties devolved on the defendants 7 to 9 as his heirs. Therefore, the plaintiff has no right or share over the property. With these averments the defendants 7 to 9 prayed for dismissal of the suit. 6. The plaintiff herself was examined as P.W. 1 and marked Exs. A1 to A5 in support of her case. 9th defendant was examined as D.W. 1 and one Sivaraman was examined as D.W. 2. They have also marked Exs. B1 to B25 in support of their defence. On the basis of the oral and documentary evidence, by Judgment and decree dated 24-10-1981, the learned District Munsif, Coimbatore, after holding that the 1st defendant has not perfected his title to the suit property by adverse possession and the right of the plaintiff was not extinguished, passed a preliminary decree for partition of the plaintiffs share. 7. Against the judgment of the learned District Munsif. Coimbatore, the defendants 7 to 9 filed an appeal before the Sub-Court, Coimbatore. Before the lower appellate court also the very same contentions were raised and on the basis of the evidence on record and in the light of the legal position, the learned Subordinate Judge, Coimbatore, confirmed the findings of the trial court and dismissed the appeal. 8. Against the concurrent findings of the courts below, the unsuccessful defendants 7 to 9 filed the present Second Appeal before this Court. While entertaining the Second Appeal this Court framed the following substantial questions of law for determination in the Second Appeal:— 1) Is not the claim of the plaintiff to the suit property barred by adverse possession and limitation, having regard to the admitted facts and circumstances of the case? and 2) Whether the plaintiff would have full absolute rights to the suit property but for the lapse of 32 years, and is not the frame of suit as one for partition, misconceived and liable to be dismissed as not maintainable? 9. Mr. and 2) Whether the plaintiff would have full absolute rights to the suit property but for the lapse of 32 years, and is not the frame of suit as one for partition, misconceived and liable to be dismissed as not maintainable? 9. Mr. Sarvabhauman, learned Senior Counsel appearing for the appellants after taking me through the various factual position and after relying upon some of the decisions of this Court as well as Supreme Court contended that the findings of the courts below are unsustainable in law and liable to he set aside. On the other hand, Mr. P. Gopalan, learned counsel appearing for the respond contended that both the courts below on the basis of the acceptable evidence came to the conclusion that the Ist defendant has not perfected title to the suit property, passed a preliminary decree for partition of the plaintiffs half share with metes and bounds, hence prayed for confirmation of the same by dismissing the Second Appeal. 10. In order to prove the plaintiffs case she very much relied on Exs. A1 to A5. On the other hand, defendants 7 to 9 who are the legal representatives of the deceased Ist defendant examined two witnesses on their side and emphasised and relied on Exs. B1 to B25. Admittedly, both Palaniammal and her husband Krishnappa Servai died intestate leaving P.W. 1 (Plaintiff) and her brother the Ist defendant as their legal representatives. Therefore, they are the sole legal heirs. In the evidence of P.W. 1 it is seen that Palaniammal, viz., her mother, died before 23 years or so. She did not give any particulars regarding the date of death of Palaniammal. However, the defendants claimed that Palaniammal died in the year 1946. In order to prove the fact that Palaniammal died in the year 1946, defendants relied on Exs. B5 and B6 Ex. B5 dated 7-2-1935 is the share certificate issued by Kuniamuthur Bank in favour of Palaniammal for Rs. 1000/- After the death of Palaniammal in the year 1946, the said share certificate issued in favour of Palaniammal had been transferred in the name of the Ist defendant under Ex. B6 an endorsement made on Exs. B5 dated 12-4-1946. According to the defendants, this endorsement of transfer was made only after the death of Palaniammal in the year 1946. 1000/- After the death of Palaniammal in the year 1946, the said share certificate issued in favour of Palaniammal had been transferred in the name of the Ist defendant under Ex. B6 an endorsement made on Exs. B5 dated 12-4-1946. According to the defendants, this endorsement of transfer was made only after the death of Palaniammal in the year 1946. During her life time the said share stood in the name of herself and only after her death in the year 1946, the said share certificate had been transferred in the name of the Ist defendant. It is the case of defendants 7 to 9 that after the death of Palaniammal, the 1st defendant and his father Krishnappa Servai were living in the dwelling house and the site, and after the death of Krishnappa Servai in the year 1964, the 1st defendant was in exclusive possession of the house and site. As a matter of fact, the Ist defendant constructed five houses in the vacant site bearing Door Nos. 49A, 51, 52, 53 and 54 in Kurichi Town Panchayat. All these houses have been assessed in the name of the 1st defendant. The 1st defendant alone leased out houses to various tenants and realising the rents therefrom all these years till his death in the year 1979. While the 1st defendant was alive he made several improvements and also constructions at his own cost. It is a definite case of the contesting defendants that P.W. 1 (plaintiff) never put forth any claim to the house or the site, and all along, accepting the title and enjoyment of the said property of the Ist defendant. In other words according to the Ist defendant, after the death of Palaniammal he was in possession of the suit property as its owner and was also enjoying the same for over 35 years till his death. With this factual position, the learned senior council appearing for the appellants contended that P.W. 1s right, if any, had become extinguished by adverse possession and prescription on the part of the 1st defendant. The plaintiff at no point of time claimed as a co-owner or co-ownership in respect of the suit property. It is the contention of the contesting defendants that the entire suit property belonged to the 1st defendant and after his death devolved on defendants 7 to 9 as his heirs. The plaintiff at no point of time claimed as a co-owner or co-ownership in respect of the suit property. It is the contention of the contesting defendants that the entire suit property belonged to the 1st defendant and after his death devolved on defendants 7 to 9 as his heirs. It is also the contention of the contesting defendants that P.W. 1 (Plaintiff) never claimed any share, much less, the entire property after the death of Palaniammal in the year 1946. In fact, according to the learned senior counsel for the appellants, she was keeping quiet without taking any action and was allowing the 1st defendant to enjoy the suit property after the death of Palaniammal in the year 1946. It is seen from the evidence of P.W. 1 that she has admitted that after the death of Palaniammal in the year 1946, the shares left by her in Kuniamuthur Bank got transferred to the 1st defendant. Therefore, if really, the plaintiff got any share in the property she would have definitely taken action in the year 1946. It is the definite case of the appellants that the plaintiff is not entitled to any partition because she was keeping quiet for over 33 years or 35 years. On the other hand, the Ist defendant perfected title by adverse possession from 1946 onwards. With these factual position, the learned Senior Counsel appearing for the appellant pleaded that the Ist defendant has perfected his title to the suit property by adverse possession and at any rate, the plaintiffs right, if any, over the suit property had been extinguished. In support of the above proposition, he relied upon (1) A.I.R. 1972 Madras 467, (2) 93 L.W. 278, (3) 98 L.W. 606, (4) 100 L.W. 1028 and (5) 1989-2-L.W. 571. 11. In Ibramsa v. S.K. Meerasa, A.I.R. 1972 Madras 467-a Division Bench of this Court has considered extensively the distinction between adverse possession as between strangers and ouster and exclusion of co-owners. After referring various decisions, the Bench has summarised the law in the following manner:— “In a case of ouster of a co-owner the position is entirely different. The possession of one co-owner is presumed to be on behalf of all the co-owners in view of the unity of title and possession. After referring various decisions, the Bench has summarised the law in the following manner:— “In a case of ouster of a co-owner the position is entirely different. The possession of one co-owner is presumed to be on behalf of all the co-owners in view of the unity of title and possession. Because of this presumption of joint ownership in the case of co-owners, the law requires, to constitute ouster, proof of something more than mere exclusive possession and exclusive receipt of income. Along with exclusive possession there must be an ouster, a hostile, open denial and an open repudiation of the other co-owners right to the latters knowledge. The co-owner in exclusive possession cannot render his possession adverse to the other co-owner merely by any secret, hostile animus on his own part in derogation of other co-owners title. Value the observations in P. Lakshmi Reddy v. L. Lakshmi Reddy ( AIR 1957 SC 314 at pp. 317 and 318; Sinnaraj Pillai v. Ramayee Ammal (1968) 2 M.L.J./639 at pp. 647 and 648= AIR 1969 Mad 96 ) and Shambhu Prasad v. Phool Kumari , AIR 1971 SC 1337 at p. 1345. But, this does not mean that the co-owner who has been ousted or excluded should be expressly informed as such by the other co-owner. If other circumstances concur, the courts, in proper cases, may legitimately infer, from exclusive possession for a considerable length of time, that the other co-owner has been excluded to his knowledge and that title has been denied and repudiated by the hostile assertion of the co-owner in possession. The theory of lost grant is applicable to support long continued possession for a considerable length of time and the most important element in presuming ouster is the time factor or the length of time or sole and exclusive possession by one co-owner. If a co-owner does not assert his rights for a considerable length of time with the result that the other side is handicapped by lapse of time and disappearance of evidence, from proving that his exclusive possession was coupled with open denial and open repudiation of the title of the other co-owner either at the inception or subsequently, the co-owner who has been inactive must take the consequence for the long delay in bringing the suit which has prejudiced the other side and occasioned the loss of evidence by lapse of time”. 12. 12. In 93 L.W. 278 Pavadai alias Selvaraj Chettiar v. Chinnadurai Padayachi and another Ramanujam, J. has observed as follows:— “It is well established that to constitute adverse possession, the possession must be actual, physical, exclusive and hostile and that to acquire title by adverse possession, such possession should be open, adequate and continuous”. 13. In 98 L.W. 606- Muthiah Pillai v. (Died) v. Vedambal , a Division Bench of this Court in respect of adverse possession and outster laid down the law which reads as follows:— “We will first state briefly the law relating to adverse possession:— The concept adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse, must be possession by a person who does not acknowledge the others rights, but denies them. The principle of law if firmly established that a person who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. What is adverse possession? Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person, in denial of the owners right excluded him from the enjoyment of his property. Setting up adverse possession by the person in adverse possession is not wrong; it is not shameful on his part to do so. The plea is allowed with the laudable intention of giving a quietus to long possession. In fact, under the Civil Procedure code, when a suit in ejectment or for possession is filed by the plaintiff he is required to show prima facie that it is within time. Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owners title and that he excluded him from the enjoyment of his property. Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owners title and that he excluded him from the enjoyment of his property. Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hositile, notorious and exclusive, so that the owner could perceive the same. In Halsbury, Volume I, Hailshams Edn. 1053, the law is put thus:— “At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. The operation of the state is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the owner to eject him,” The classical requirements of adverse possession are that the possession must be nec vi clam nec precario , that is to say, the possession required must be adequate in continuity in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that a person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. In Secretary of State v. Debendralal Khan their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. Mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. Permissive possession does not become hostitle till there is an assertion of an adverse possession to the knowledge of the owner. Sheodhari Rao v. Suraj Prasad Singh . The permissive character of the possession can be inferred from the attending circumstances even without direct evidence. Permissive possession does not become hostitle till there is an assertion of an adverse possession to the knowledge of the owner. Sheodhari Rao v. Suraj Prasad Singh . The permissive character of the possession can be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception, the possession cannot prescribe or sustain title or any claim adversely to the grantor of the possession Ousuph v. Mathen Marimamma.” 14. Subbiah Doss. P (died) v. Christudoss Shanmugasundaram (died) 100 L.W.-1028-/ Sengottuvelan. J in respect of adverse possession after referring to earlier judgments, has observed in the following manner:— “An argument was advanced on the observation of the appellate court that the appellants had not established hostile title to that of the respondent. Mr. T.R. Mani, learned counsel for the appellants contented that all the elements that constitute adverse possession are present in this case and also relied upon several decisions in this regard in support of his argument. In the case reported in Secretary of State v. Debendralal, it has been observed that possession to be adverse should be overt without an attempt at concealment so that the person against Whom time is running ought, if he exercises due vigilance, to be aware of what is happening and it is not necessary that it should be brought to the notice of the real owner. In the case reported in Srichandra v. Baijnath it has been held that in order to constitute adverse possession, such possession must be adequate in continuity, publicity and extent. In the case reported in Kuppuswami v. Kuppuswami this Court had found that adverse possession is possible even against a person who is detained in Andamans and such possession need not be made known to the real owner. In the case reported in Vaithilinga Gounder v. Kuppuswami Gounder, a learned Judge of this Court had set out the principle to be adopted in the matter of ascertaining adverse possession in which the above principles have to be reiterated. Reliance is also placed upon the case reported in Kshitish Chandra v. Commissioner of Ranchi where it has been observed that in order to constitute adverse possession, such possession must be open and without concealment and it is not necessary to bring such possession to the knowledge of the real owner. Reliance is also placed upon the case reported in Kshitish Chandra v. Commissioner of Ranchi where it has been observed that in order to constitute adverse possession, such possession must be open and without concealment and it is not necessary to bring such possession to the knowledge of the real owner. The trial court will bear in mind the principles laid down in the above decisions in deciding the case”. 15. In 1989-2 L.W. 571- Charles Hereward Simpson v. The Government of Tamilnadu a Division Bench of this Court has considered the applicability of adverse possession among other things. After referring to various earlier decisions of this Court and other High Courts, and other High Courts, the Supreme Court, granted the relief. 16. The learned counsel appearing for the respondent though mentioned several decisions of various High Courts in support of his plea, has not specifically pointed out any of the decisions which supports his contention. However, he advanced the same arguments what had been reiterated before the courts below. In the light of the various decisions cited by the learned counsel appearing for the appellants it is useful to refer to factual aspects in this case. 17. Both the courts below accepted the one important fact that the mother of the plaintiff viz., Palaniammal died in the year 1946. It is also not disputed that both Palaniammal as well as her husband Krishnappa Servai died intestate leaving the plaintiff and her brother viz., the Ist defendant as their legal heirs. After the death of Palaniammal, the shares standing in her name have been transferred to the name of the 1st defendant. Ex. B5 is the certificate issued by Kuniamuthur Bank. It is dated 7-2-1935. It is a share certificate issued in favour of Palaniammal for Rs. 1000/-. Ex. B.6 dated 12-4-1946 is the endorsement of transfer made on the reverse of Ex. B5 in favour of the 1st defendant. Subsequent to the said transfer under Ex. B6 the 1st defendant dealt with that share under Ex. B7 and B8, by raising loans (12-4-1946 to 8-12-1946 and 12-4-1946 to 8-1-1951). After the death of Palaniammal, her daughter viz., the plaintiff has made no claim or interest over the suit property. The house built by Palaniammal was given Door No. 3/37/A in Kurichi Panchayat. It was assessed to property tax and it stood in the name of the 1st defendant Ex. After the death of Palaniammal, her daughter viz., the plaintiff has made no claim or interest over the suit property. The house built by Palaniammal was given Door No. 3/37/A in Kurichi Panchayat. It was assessed to property tax and it stood in the name of the 1st defendant Ex. B9 dated 24-10-1956 is a receipt for the payment of property tax. Ex. B10 is another property tax receipt issued in favour of the 1st defendant for the year 1952. In the year 1955-1956 the 1st defendant built a house bearing Door No. 51. In the year 1960 he built three houses bearing Door Nos. 52, 53 and 54 respectively. Likewise, in the year 1970 he built another house on the suit property bearing Door No. 49-A. Ex. B.11 is the receipt for the payment of property tax for the house bearing Door No. 50. For all these six houses referred above, the assessment stood in the name of the Ist defendant. Exs. B12 to B15 are the various receipts or demand notices issued by the Municipality or Panchayat to the 1st defendant regarding the property tax. Ex. B16 is the notice issued to the Ist defendant by the Panchayat in respect of the house bearing Door No. 49/A. He also obtained electricity service connection for the said house. Ex. B17 is the receipt for the payment of current consumption charges. Ex. B18 is the approved plan, dated 7-1-1970. Ex. B19 dated 30-9-1969 is the notice issued by the Kurichi Panchayat Union to the Ist defendant. Exs. B20 to B24 are the property tax receipts for the years 1977-1978 issued by the Kurichi Town Panchayat in favour of the 1st defendant. A suit has been filed by the neighbour of the 1st defendant in O.S. No. 1182/56 on the allegation that the 1st defendant has encroached. The said suit has been dismissed as evidenced by Ex. B25. Even though the plaintiff was aware of the activities of the 1st defendant, she did not raise any objection. Curiously, after a lapse of 35 years the plaintiff has claimed share in the suit property by way of filing the present suit. She had lost her title to the suit property and her right if any over the suit property had become extinguished by adverse possession and prescription on the part of the Ist defendant. Curiously, after a lapse of 35 years the plaintiff has claimed share in the suit property by way of filing the present suit. She had lost her title to the suit property and her right if any over the suit property had become extinguished by adverse possession and prescription on the part of the Ist defendant. She did not make her claim till 1978, that the suit property exclusively belonged to her after the death of Palaniammal. But her failure to claim right over property for over 35 years amounted to exclusion or extinction of her right. All the ingredients as pointed in the abovesaid decisions are fulfilled by the 1st defendant in this case. The acts of the 1st defendant improving the suit properly, putting up 8 houses, transferring the shares which stood in the name of Palaniammal in favour of the 1st defendant, mortgaging the property through a Co-operative Society, leasing out the suit properties to various tenants, to the knowledge of the plaintiff for more than 35 years clearly prove that the plaintiff had lost her right in the suit property and the 1st defendant had perfected his title by adverse possession. Since the defendants 7 to 9 (appellants in the Second Appeal) are the legal heirs of the 1st defendant, they arc entitled to succeed the properties of the 1st defendant. 18. Applying well known principles set out in the various decisions as referred to by the learned Senior Counsel for the appellant and of the overwhelming factual position as seen from the oral and documentary evidence. I am unable to accept judgment and decree of the courts below granting decree in favour of the plaintiff 19. For the reasons stated above, the Second Appeal is allowed and the judgment and decree of the courts below are set aside and the suit filed by the plaintiff is dismissed. There will be no order as to costs.