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2019 DIGILAW 1071 (MAD)

Rajagopal Gounder v. Sakunthala Ammal

2019-04-11

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree of the Principal Subordinate Judges Court, Thiruvannamalai passed in A.S.No.67 of 1999 dated 29.09.2001 confirming the decree and judgment of the District Munsif's Court, Thiruvannamalai passed in O.S.No.519 of 1998 dated 15.06.1999.) 1. Challenge in this second appeal is made to the judgment and Decree dated 29.09.2001 passed in A.S.No.67 of 1999 on the file of the Principal Subordinate Court, Thiruvannamalai confirming the judgment decree and dated 15.06.1999 passed in O.S.No.519 of 1998 on the file of the District Munsif Court, Thiruvannamalai. 2. The parties are referred to as per the rankings in the trial court for the sake of convenience. 3. Suit for declaration, mense profits, permanent injunction and mandatory injunction. 4. The case of the plaintiff in brief is that the plaint A schedule properties originally belonged to Dhanalakshmi ammal, the sister of the plaintiff's father Natesa Gounder by virtue of the settlement deed dated 24.08.1962 executed in her favour by her father and following the same, it is only Dhanalakshmi ammal, who has been in the possession and enjoyment of the plaint A schedule properties and Dhanalakshmi Ammal had two sons namely Durai and Udhaya Kumar and Durai died about 1 ½ years back and the sons of Dhanalakshmi ammal had no manner of right, title or interest over the plaint A schedule properties which belonged to Dhanalakshmi ammal absolutely. But, it appears that without any lawful title, they had endeavored to alienate the plaint A schedule properties to Kuppusamy Gounder, the husband and the father of the defendants 1 and 2 respectively, about two years back, however the said alienation is not valid and binding on Dhanalakshmi ammal and therefore Kuppusamy Gounder cannot claim to have derived a valid title to the plaint A schedule properties based on the sale deed executed in his favour from the persons not having the title to the plaint A schedule properties. The plaintiff has purchased the plaint A schedule properties and other properties from Dhanalakshmi Ammal by way of a registered sale deed dated 16.09.1998 for valuable consideration and however the plaintiff was unable to take the possession of the plaint A schedule properties, since they are in the unlawful possession of the defendants, hence the plaintiff has sent a legal notice calling upon the defendants and Kumar S/o, Dhanalakshmi ammal to surrender the possession of the plaint A schedule properties on 19.09.1998. The defendants did not respond to the said notice. However, Kumar has sent a reply containing false allegations, and there had never been any partition between Dhanalakshmi ammal and her two sons and the alleged partition pleaded by Kumar is invalid and hence the plaintiff is necessitated to lay the suit for appropriate reliefs as regards the plaint A schedule properties. Further according to the plaintiff, his father Natesa Gounder had purchased the plaint B schedule properties from Rajamanickam, Manicka Raj and Chinnasamy by way of a registered sale deed dated 11.12.1975 for the purpose of forming a channel to take water to the plaintiff's lands and after the purchase, he has also formed the channel in “L” shape in the said properties as depicted in the plaint plan and accordingly the plaintiff's father and the plaintiff had been using the plaint B schedule properties as abovestated and after the demise of the plaintiff's father, the plaintiff became the absolute owner of the plaint B schedule properties and enjoying the same as a channel and passage for more than the statutory period and thereby also prescribed title to the plaint B schedule properties by adverse possession. The channel in the said properties extends on the east up to the road of Rajamanickam's land. The channel in the said properties extends on the east up to the road of Rajamanickam's land. The plaintiff's husband Kuppusamy Gounder appears to have entered into an exchange transaction with the plaintiff's vendors in respect of certain lands inclusive the plaint B schedule properties by way of a deed dated 19.10.1979, however after the alienation of the plaint B schedule properties to the plaintiff's father in 1975, the plaint B schedule properties could not be dealt again by the erstwhile owners and furthermore even in the exchange deed, the channel formed by the plaintiff's father had been excluded and due to enmity the defendants had high handedly obliterated the channel portion in the plaint B schedule properties up to the point 'DE' as shown in the plaint plan and the plaintiff questioned the same and directed the defendants to restore the channel to its original position, but the defendants failed to comply with the same even after the issuance of notice and hence according to the plaintiff, he has been necessitated to lay the suit against the defendants for appropriate reliefs as regards the plaint B schedule properties also and hence the suit. 5. The case of the defendants in brief is that the suit laid by the plaintiff is not maintainable and the suit laid by the plaintiff without impleading his sister Rani ammal W/o, Durai is bad in law. Dhanalakshmi ammal died six months back and Dhanalakshmi ammal was not keeping well for more than 10 years prior to her death and accordingly unable to manage her properties and therefore during 1992 itself, the oral partition had been effected between Dhanalakshmi ammal and her two sons Durai and Udaya kumar in the presence of village elders and in the said oral partition, the plaint A schedule properties were allotted to the share of Udaya Kumar and since then, it is only Udhaya Kumar who had been in the possession and enjoyment of the plaint A schedule properties and Udhaya kumar had sold the same to Kuppusamy Gounder for a valid consideration on 24.05.1993 and since then, it is only Kuppuamy Gounder and thereafter the defendants who had been in possession and enjoyment of the plaint A schedule properties. Out of abundant caution, the other son of Dhanalakshmi ammal namely Durai had also joined in the execution of the sale deed dated 24.05.1993 and Kuppusamy Gounder had been enjoying the plaint A schedule properties by obtaining patta, paying Kists etc., and therefore the claim of the plaintiff that he had purchased the plaint A schedule properties from Dhanalakshmi ammal as put forth in the plaint is false, and further according to them, the plaint B schedule properties do not belong to the plaintiff as stated in the plaint and no channel had been formed in the said properties by the plaintiff's father and the plaintiff's father had not purchased the plaint B schedule properties by virtue of the sale deed dated 11.12.1975 as claimed in the plaint and not enjoyed the same at any point of time. Perumal Gounder and Ramasamy Gounder are brothers of Manicka Raj. Chinnasamy and Rajamanickam are the sons of Perumal Gounder and in the partition effected amongst them, the plaint B schedule properties and other properties had been allotted to Manicka Raj and Chinnasamy and the first defendant's husband Kuppusamy is the son of Ramasamy Gounder and accordingly for the sake of convenience, Manickaraj and Chinna samy exchanged the lands with Kuppusamy Gounder by way of an exchange deed dated 19.10.1979 and thereby Kuppusamy had acquired the plaint B schedule properties and since then enjoying the same. Neither the plaintiff's father nor the plaintiff has been in the possession and enjoyment of the plaint B schedule properties at any point of time and furthermore, the defendants have also prescribed title to the plaint B schedule properties by way of adverse possession and the case projected by the plaintiff that the defendants had obliterated the channel formed in the plaint B schedule properties is false as no channel had been in existence in the suit properties and hence the suit is liable to be dismissed. 6. Based on the abovesaid pleadings, the parties went for trial and in support of the plaintiff's case P.Ws.1 to 3 were examined. Exs.A1 to A12 were marked. On the side of the defendants, D.Ws.1 to 4 were examined. Exs.B1 to B6 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made the Courts below were pleased to dismiss the plaintiff's suit. Exs.A1 to A12 were marked. On the side of the defendants, D.Ws.1 to 4 were examined. Exs.B1 to B6 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made the Courts below were pleased to dismiss the plaintiff's suit. Impugning the same, the plaintiff has preferred the present second appeal. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: a. Was it correct for the Lower Appellate Court to hold that the sale deed in Ex.A3 executed by Dhanalakshmi Ammal was nominal when P.W.3 was examined to prove that Ex.A3 was a real transaction between them? b. Was it correct for the Lower Appellate Court to hold that Ex.A3 was nominal when no plea was raised in the written statement to that effect by the defendants? c. When the legal requirement are wanting to prove adverse possession was the lower Appellate Court correct in holding that the defendants have prescribed title to the 'B' schedule property by adverse possession? 9. The materials placed on record would go to show that the plaint A schedule properties originally belonged to Dhanalakshmi ammal by virtue of a settlement deed executed in her favour, dated 24.08.1962 by her father. The abvoesaid fact is not in dispute. It is thus noted that the plaint A schedule properties absolutely belonged to Dhanalakshmi ammal. Dhanalakshmi ammal had two sons namely Durai and Udhaya Kumar. The plaintiff's sister Rani is the wife of Durai. Durai had died. According to the plaintiff, he has purchased the plaint A schedule properties from Dhanalakshmi ammal under a registered sale deed dated 16.09.1998 for a valid consideration and accordingly, he is entitled to the said properties and according to the plaintiff, the defendants without any right, whatsoever has been in the possession of the plaint A schedule properties and hence it is his case that the defendants are liable to surrender the plaint A schedule properties to him and as they had failed to surrender the same, despite the legal notice issued to them, according to the plaintiff, he has been necessitated to institute the suit against the defendants for appropriate reliefs as regards the plaint A schedule properties. 10. 10. The defendants resisted the plaintiff's suit as regards the plaint A schedule properties contending that in the oral partition effected during 1992 between Dhanalakshmi ammal and her two sons in the presence of village elders, it is claimed that the plaint A schedule properties had been allotted to the share of Udhaya kumar and Dhanalakshmi ammal was given some jewels and Durai was given the other properties and thereby it is putforth by the defendants that since then, it is only Udhayakumar, who has in the possession and enjoyment of the plaint A schedule properties and further according to the defendants, Udhaya kumar had alienated the plaint A schedule properties in favour of Kuppusamy Gounder, the husband of the first defendant and the father of the second defendant on 25.04.1993 by way of a registered sale deed and it is stated that since then, it is only Kuppusamy Gounder and thereafter the defendants, who had been in the possession and enjoyment of the plaint A schedule properties by obtaining patta, paying Kists etc., and therefore putforth the defence that the plaintiff has no title to the plaint A schedule properties and therefore not entitled to claim the possession of the said properties from the defendants and the suit is liable to be dismissed with reference to the same. 11. As regards the claim of the plaintiff that he has purchased the plaint A schedule properties from Dhanalakshmi ammal by virtue of the sale deed dated 16.09.1998, the abovesaid sale deed has been marked as Ex.A3. 11. As regards the claim of the plaintiff that he has purchased the plaint A schedule properties from Dhanalakshmi ammal by virtue of the sale deed dated 16.09.1998, the abovesaid sale deed has been marked as Ex.A3. Furthermore, the plaintiff has also examined the attestor to the abovesaid sale deed as P.W.3 Chinnasamy and P.W.3 in his evidence has deposed clearly that he has attested the sale deed marked as Ex.A3 and the other attestor is Rani, the sister of the plaintiff and he has further stated that the abovesaid sale deed had been executed by Dhanalakshmi ammal in favour of her brother's son Rajagopal, the plaintiff and the said document was scribed by one Sundhar of Keelpanathur and Dhanalakshmi ammal was hale and healthy at that point of time and affixed her LTI in the sale deed Ex.A3 and the same had been witnessed by him and Rani, the other attestor and he and Rani had witnessed the affixing of LTI by Dhanalakshmi ammal in Ex.A3 and despite cross examination nothing has been culled out from P.W.3 to disbelieve his abovesaid version with reference to the execution of Ex.A3 sale deed by Dhanalakshmi ammal in favour of the plaintiff. Furthermore, the plaintiff as P.W.1 has also deposed about Ex.A3 sale deed that it had been executed by Dhanalakshmi ammal in his favour and thereby he is entitled to the same as the lawful owner. Despite cross examination, nothing has been elucidated from P.W.1 to disbelieve his version as regards the abovesaid facts. 12. As abovenoted, Dhanalakshmi ammal is admitted to be the absolute owner of the plaint A schedule properties. Accordingly, when the plaintiff has putforth the case that he has purchased the plaint A schedule properties from the lawful owner and also adduced evidence with reference to the same in an acceptable and convincing manner as above pointed out, it is evident that by virtue of Ex.A3 sale deed, it is only the plaintiff, who has a lawful title to the plaint A schedule properties. 13. However, the plaintiff would state that pursuant to Ex.A3, he is unable to obtain the possession of the plaint A schedule properties, inasmuch as, the same had been in the illegal possession and enjoyment of the defendants. 13. However, the plaintiff would state that pursuant to Ex.A3, he is unable to obtain the possession of the plaint A schedule properties, inasmuch as, the same had been in the illegal possession and enjoyment of the defendants. In this connection, the defendants would putforth the defence that in the oral partition effected during the year 1992 between Dhanalakshmi ammal and her two sons namely Durai and Udhaya Kumar in the presence of village elders, the plaint A schedule properties were allotted to the share of Udhaya Kumar and since then, it is he, who has been in the possession and enjoyment of the same as the absolute owner and accordingly it is putforth by them that Udhayakumar had consequently sold the plaint A schedule properties to Kuppusamy Gounder, the husband of the first defendant and the father of the second defendant by way of a registered sale deed dated 24.05.1993 marked as Ex.A1 and accordingly putforth the case that it is only Kuppusamy Gounder and thereafter his legal heirs, the defendants who are in the possession and enjoyment of the plaint A schedule properties as the lawful owners by obtaining patta, paying Kists etc., However, the abovesaid defence version projected by the defendants is stoutly challenged by the plaintiff. 14. Inasmuch as, as per the records available, it is only Dhanalakshmi ammal, who had the absolute title to the plaint A schedule properties and on the other hand, the defendants have put up the case that in the oral partition effected during the year 1992, the plaint A schedule properties had been the subject matter between Dhanalakshmi ammal and her two sons Durai and Udhaya kumar. It is thus for the defendants to establish that such an oral partition took place during the year 1992 between Dhanalakshmi ammal and her two sons and in the same, the suit properties had been allotted to the share of Udhaya Kumar as putforth by them. However, the defendants had failed to establish the abovesaid version projected by them. It is thus for the defendants to establish that such an oral partition took place during the year 1992 between Dhanalakshmi ammal and her two sons and in the same, the suit properties had been allotted to the share of Udhaya Kumar as putforth by them. However, the defendants had failed to establish the abovesaid version projected by them. In this connection, the first defendant examined as D.W.1, during the course of cross examination has admitted, that though in the chief examination she would claim that during the year 1992, the two sons of Dhanalakshmi ammal had divided the properties obtained by Dhanalakshmi ammal by way of a settlement, that she does not know about the oral partition effected amongst the abovesaid persons directly and she had only heard about the same and according to her, the abvoesaid partition was effected in the presence of Perumal Gounder and Kandhasamy and when as admitted by D.W.1, the first defendants, he does not know about the oral partition put forth by the defendants alleged to have been effected during the year 1992 amongst Dhanalakshmi ammal and her two sons and she had only heard about the same, it is evident that her evidence would be of no use to sustain the abovesaid oral partition putforth by the defendants. 15. Perumal Gounder in whose presence the alleged oral partition as claimed in the written statement was effected, has been examined as P.W.2. P.W.2 during the course of evidence and in the chief examination has vaguely stated that Dhanalakshmi ammal had called him and Govindhasamy to effect division of the properties belonging to her 15 years ago and in the said partition, the said plaint A schedule properties were allotted to Udhayakumar and according to him, Dhanalakshmi ammal was given certain jewels towards her share and it is putforth by him that the abvoesaid partition was effected orally and no document was written. During the course of cross examination, he has admitted that he does not remember as to in which year the abovesaid oral partition took place and does not remember the date and when he has not come forward with a clear manner as to when and what are the properties which had been available with the parties at the time of oral partition and what are the properties which were allotted to the each son of Dhanalakshmi ammal and what are the properties / movables allotted to Dhanalakshmi ammal in the said partition and when with reference to the same, P.W.2 has not come forward with the clear and prime particulars and when he is unable to state as to when actually the oral partition took place, his evidence cannot be safely relied upon to uphold the oral partition pleaded by the defendants. 16. Though the defendants had examined Udhaya Kumar as D.W.4 in support of their defence, when D.W.4 is unable to substantiate as to when actually the alleged oral partition took place and unable to give any particulars as to the properties involved in the alleged oral partition by giving the particulars of the same such as survey number, extent etc., and also unable to come forward with a clear case as to the properties allotted to his brother and mother and to him in the alleged oral partition and also not placed any material to show that since the alleged oral partition, he has been in the possession and enjoyment of the plaint A schedule properties as the absolute owner thereof, by obtaining patta, paying Kists etc., in all, it is found that inasmuch as no such partition had been effected, D.W.4 is also unable to place any proof whatsoever pointing to the same and in such view of the matter, his evidence would be of no use to sustain the plea of oral partition and the allotment of the plaint A schedule properties to his share in the alleged oral partition and hence the evidence of D.W.4 does not merit acceptance for upholding the defence version. 17. The defence has been putforth that in the oral partition, the suit properties had been allotted to Udhaya kumar, S/o, Dhanalakshmi ammal and the said partition took place during the year 1992. Udhaya kumar is found to have alienated the suit properties to Kuppusamy Gounder on 24.05.1993. 17. The defence has been putforth that in the oral partition, the suit properties had been allotted to Udhaya kumar, S/o, Dhanalakshmi ammal and the said partition took place during the year 1992. Udhaya kumar is found to have alienated the suit properties to Kuppusamy Gounder on 24.05.1993. However, there is no material placed on record to evidence that, after the alleged oral partition, it is only Udhaya Kumar, who had been in the possession and enjoyment of the plaint A schedule properties by obtaining patta, paying Kists etc., with reference to his abovesaid possession, nil material is placed on the part of the defendants. Furthermore in Ex.B1,sale transaction under which Udhaya Kumar is found to have alienated the plaint A schedule properties to Kuppusamy Gounder along with his brother Durai, there is no reference at all made therein that Udhaya Kumar had derived the plaint A schedule properties in the oral partition effected during the year 1992 and on the other hand in the body of the sale deed Ex.B1, it has been recited that the plaint A schedule properties comprised therein belong to the executants of the said deed and in what manner they had acquired the same absolutely, there is no reference made in the said document. Furthermore, in the description of the properties, it has been averred that the abovesaid properties had been derived by the vendors/executants ancestrally and been enjoyed by them in that capacity. Furthermore, in the description of the properties, it has been averred that the abovesaid properties had been derived by the vendors/executants ancestrally and been enjoyed by them in that capacity. Therefore, when in Ex.B1, Udhaya Kumar has not putforth any clear recital as to how he had derived the plaint A schedule properties for entitling him to convey the same to Kuppusamy Gounder and if really the plaint A schedule properties had been allotted to his share in the oral partition said to have been effected during the year 1992, a reference about the same would have been mentioned in Ex.B1 sale transaction and on the other and as abovenoted, the plaint A schedule properties are claimed to be the ancestral properties of the executants of Ex.B1 and only in that capacity, they had been enjoying the same, and in the body of the said transaction the executants had claimed the same to be their own properties however not underlining as to how they had acquired title to the same and all put together, it is found that as rightly contended by the plaintiff's counsel, inasmuch as the oral partition pleaded by the defendants has no legal sanctity and not taken place as putforth by them and the abovesaid plea of oral partition had been taken by the defendants falsely to stifle the plaintiff's case one way or the other, it is found that the defendants are unable to place acceptable and reliable materials pointing to the same and also not endeavored to come out with the same by giving a clear reference qua the same in Ex.B1 sale transaction. 18. However, the Courts below seem to have accepted the defence version on the footing that the plaintiff during the course of cross examination has admitted that the plaint A schedule properties had been in the possession and enjoyment of Kuppusamy Gounder over a considerable period of time and thereby the plaintiff would have had the knowledge that Kuppusamy Gounder had been enjoying the plaint A schedule properties only by virtue of Ex.B1 sale transaction and thereby, it is only Kuppusamy Gounder, who had title to the plaint A schedule properties. But the abovesaid reasonings of the Courts below are found to be quite unacceptable and without any basis. But the abovesaid reasonings of the Courts below are found to be quite unacceptable and without any basis. When the case has been projected by the defendants that Kuppusamy's vendor had obtained title to the plaint A schedule properties under the oral partition and when the same has been disputed by the plaintiff and when there is no material placed on the part of the defendants that the oral partition had taken place between Dhanalakshmi ammal and her two sons during 1992 as claimed by the defendants and when there is no material to hold that since then, it is only Udhaya Kumar, who had been enjoying the plaint A schedule properties as the absolute owner thereof, merely because Kuppusamy Goudner had been in the possession and enjoyment of the plaint A schedule properties over a period of time, that alone, by itself would not entitle him or the defendants as such to claim the absolute title to the suit properties. When the defendants had failed to establish the claim of title to Udhaya kumar to the plaint A schedule properties, in such view of the matter, it is seen that the defendants cannot be allowed to lay the claim of title to the plaint A schedule properties based on Ex.B1 sale transaction, inasmuch as, the same had come to be effected by person not having a valid title to the plaint A schedule properties and hence it is seen that Ex.B1 sale transaction cannot be given any validity as such for upholding the claim of the defendants to the plaint A schedule properties. In this connection, the defendants would rely upon the patta projected by them in the matter. However, when the patta document projected by the defendants are found to have been derived based on Ex.B1 sale transaction and when Ex.B1 sale transaction itself has no legal sanctity and validity, the revenue documents which had emanated on the basis of the same, whatsoever, have no validity, as such and furthermore the revenue documents cannot be considered as the documents of title and in such view of the matter, the patta documents projected by the defendants would not enable the defendants to claim a valid title to the plaint A schedule properties as putforth by them. 19. 19. The resultant position is that the defendants have no valid title to the plaint A schedule properties and on the other hand, the plaintiff having purchased the plaint A schedule properties admittedly from the lawful owner namely Dhanalakshmi ammal and had also established the truth and validity of the abovesaid transaction by examining himself as well as the attestor to the same as P.W.3, it is seen that the plaintiff had acquired a valid title to the suit properties by way of Ex.A3 sale deed. However, it is found that inasmuch as the possession of the suit properties had been with the defendants, he was unable to take the delivery of the plaint A schedule properties pursuant to Ex.A3 sale transaction. When the defendants are found to be in the possession of the suit properties without any lawful title and when the plaintiff has claimed title to the plaint A schedule properties from the lawful owner by way of Ex.A3 sale deed and when the defendants had not placed any material to disbelieve Ex.A3 sale transaction in any manner and furthermore when the defendants have not even pleaded in the written statement Ex.A3 sale transaction is a sham and nominal document or they had prescribed title to the plaint A schedule properties by way of adverse possession and furthermore, even assuming for the sake of arguments, they have putforth the plea of adverse title to the plaint A schedule properties, when the same has not been established by the defendants by placing acceptable and reliable materials as required by law. i.e., they and their predecessors in interest having enjoyed the plaint A schedule properties beyond the statutory period openly, continuously and uninterruptedly by asserting title on themselves to the knowledge of one and all including the lawful owners of the same namely Dhanalakshmi ammal and the plaintiff beyond the statutory period, in such view of the matter, it is seen that the plaintiff being the lawful title holder of the plaint A schedule properties would be entitled to recover the possession of the same form the defendants who are in the possession of the same without any legal entitlement whatsoever. 20. 20. In the light of the abovesaid discussions, when the defendants themselves have not come forward with any specific case that Ex.A3 sale transaction is a sham and nominal document and not really indented to be acted upon, on the other hand, the plaintiff has placed acceptable material, as above pointed out, that Ex.A3 had been execudted by Dhanalakshmi ammal in his favour and thereby he had derived title to the same, it is found that the Courts below had negatived the plaintiff's suit as regards the plaint A schedule properties without any basis or pleadings with reference to the same as regards the said sale transaction on the part of the defendants and as determined by them and in such view of the matter, the judgment and decree of the Courts below rejecting the plaintiff's suit and upholding the defence version as regards the plaint A schedule properties being founded on an erroneous appreciation of the materials placed on record, both factualwise as well as legalwise and accordingly they being totally perverse, illogical and irrational cannot be sustained in the eyes of law and liable to be set aside. Thus it is found that the plaintiff is entitled to obtain the reliefs of declaration and possession as regards the plaint A schedule properties against the defendants as prayed for. 21. The materials placed on record go to show that the plaint B schedule properties belong to the sons of Perumal Gounder namely Raja manickam, Manicka Raj and Chinna samy and according to the plaintiff, his father had purchased the plaint B schedule properties by way of a registered sale deed dated 11.12.1975 which document had come to be marked as Ex.A9. Accordingly, it is found that the plaintiff ha acquired the plaint B schedule properties from the lawful owners. It is further stated by the plaintiff that following Ex.A9, his father had formed a channel in the plaint B schedule properties and using the same to reach the lands and thereby enjoying the same and according to the plaintiff, the defendants without any entitlement based on exchange transaction with Chinna samy and Manicka Raj, falsely laid a claim of title to the plaint B schedule properties and also obliterated the portion of a channel formed by the plaintiff's father and hence seeking appropriate reliefs with reference to the same, the plaintiff has come forward with the suit. 22. 22. The defendants have not disputed the title of the plaint B schedule properties as originally belonging to Rajamanickam, Manicka Raj and Chinnasamy. Infact, the defendants claim title to the plaint B schedule properties following the exchange transaction with Chinnasamy and Manicka Raj dated 19.10.1979 which document has been marked as Ex.B6. Admittedly, Rajamanickam has not joined in the abovesaid exchange transaction. According to the defendants, in the partition effected amongst the abovesaid three owners namely Manicka Raj, Raja Manickam and Chinna Samy, the plaint B schedule properties had been allotted to the share of Manicka Raj and Chinna samy, however as to when the said partition took place, whether the same was made orally or by a written document, What are the properties which were dealt with under the abovesaid partition and what are the shares allotted to the different sharers and when with reference to the same, when absolutely there is no pleading or proof placed on the part of the defendants, their claim that the plaint B schedule properties had come to be acquired by Manicka Raj and Chinna samy in the oral partition cannot be accepted in any manner and liable to be rejected forthright. 23. When the plaintiff's father had already acquired title to the plaint B schedule properties under Ex.A9 sale transaction from the lawful owners and when the entitlement of Manicka Raj and Chinna samy to the same thereafter has not been established by the defendants, their defence that by way of Ex.B6 exchange deed, they had acquired title to the plaint B schedule properties cannot be accepted in any manner and accordingly it is seen that Ex.B6 sale transaction is found to be not a true and valid transaction and thereby it is found that the same would not bind on the plaintiff in any manner. 24. Knowing fully well that the defendants have no valid title to the plaint B schedule properties, the defendants particularly also projected the claim of the title to the plaint B schedule properties by way of adverse possession. 24. Knowing fully well that the defendants have no valid title to the plaint B schedule properties, the defendants particularly also projected the claim of the title to the plaint B schedule properties by way of adverse possession. However when there is no material worth acceptance on the part of the defendants that they and their predecessors in interest had been enjoying the plaint B schedule properties openly, continuously and uninterruptedly beyond the statutory period by asserting title on themselves and by exercising Animus possidendi, considering the parameters with reference to the plea and proof of adverse possession pointed out by the Apex Court as outlined in the decision reported in 2006 (5) CTC 378 [ T.Anjanappa and others Vs. Somalingappa and another], when the principles outlined therein had not been established by the defendants by placing reliable and requisite materials, the plea of adverse possession putforth them by cannot be accepted and the Courts below without any basis, proceeded to hold that the defendants have prescribed title to the plaint B schedule properties by way of adverse possession. The Apex Court has explained the concept of adverse possession, the pleas which are required to be made for claiming title on the basis of the same and the proof which has to be adduced for sustaining the same in the abovesaid decision as follows: Adverse Possession – Concept of Adverse Possession contemplates possession which is expressly or impliedly in denial of title of true owner – Possession must be by person who does not acknowledge other's rights but denies them – Principle of law is that person, who bases his title on adverse possession, must show by clear and unambiguous evidence that his possession was hostile to real owner and amounts to denial of his title to property claimed – Animus of person doing those acts is most crucial factor in determining adverse possession – Person having possession under lawful title cannot claim adverse possession – Person setting up adverse possession holding under rightful owner's title like Trustees, Guardians, etc. cannot plead adverse possession-Burden of proof to establish adverse possession is on person who pleads adverse possession – If “A” is in possession of land of “B”, “A” is in adverse possession of it unless there is something to show that possession of “A” is consistent with recognition of B's title – Basic principle of law of adverse possession is that is is temporary and abnormal separation of property from title of it when person holds property innocently against whole world but wrongfully against true owner and possession is inconsistent with title of true owner – Possession however long it may be does not necessarily mean that it is adverse to true owner. CASES REFERRED 1. Annasaheb Vs. B.B.Patil, AIR 1995 SC 895 2. Rains Vs. Buxion, 1880(14) Ch D 537 3. Vidya Devi Vs. Prem Prakash, 1995 (4) SCC 496 4. Ward Vs. Carttar, 1866 LR I Eq.29 25. According to the plaintiff, his father had formed the channel in the plaint B schedule properties, accordingly it is found that unable to suppress the same in the exchange deed marked as Ex.B6, the parties to the exchange deed had also exchanged the lands excluding the channel available in the plaint B schedule properties. Therefore it is found that the parties to Ex.B6 exchange deed are conscious that the plaintiff's father had been in the possession and enjoyment of the plaint B schedule properties by forming a channel and accordingly necessary recitals to the said fact had also been incorporated in Ex.B6 deed. However, somehow or the other to conceal the same, the defendants would plead falsely that the channel referred to in Ex.B6 do not relate to the channel formed by the plaintiff's father and the same refers to some other channel lying adjacent to the properties. However, somehow or the other to conceal the same, the defendants would plead falsely that the channel referred to in Ex.B6 do not relate to the channel formed by the plaintiff's father and the same refers to some other channel lying adjacent to the properties. However, when with reference to the same and above all, when there is no material placed on the part of the defendants that they are in the possession and enjoyment of the plaint B schedule properties following Ex.B6 exchange deed as the lawful owners thereof and in particular, when they had failed to establish the title of Mancika raj and Chinna samy to the same and when Manicka Raj and Chinna samy along with Raja Manickam are found to have alienated the plaint B schedule properties to the plaintiff's father much earlier by way of Ex.A9 sale transaction, in all and abovesaid factors are also established by the plaintiff through the evidence of Raja Manickam and Chinna samy examined on his side as P.Ws.2 and 3, in all, it is found that the defendants have no right whatsoever in the plaint B schedule properties and on the other hand, high handedly they had obliterated the portion of the channel in the same and accordingly it is found that the plaintiff has been necessitated to seek the appropriate reliefs in connection with the same and accordingly the plaintiff having established his valid title to the plaint B schedule properties and also the existence of the channel lying therein and the obliteration of the same by the defendants without authority or entitlement, it is found that when the defendants have failed to establish their plea of adverse possession with reference to the same and when the Courts below are found to have, without any basis, upheld the title of the defendants to the plaint B schedule properties by way of adverse possession, sans any material pointing to the same, resultantly the said determination of the Courts below could only be described as perverse, illogical and irrational and not having the sanctity of law. In all, it is found that the plaintiff is entitled to seek and obtain the reliefs prayed for as regards the plaint B schedule properties as putforth in the plaint. 26. In all, it is found that the plaintiff is entitled to seek and obtain the reliefs prayed for as regards the plaint B schedule properties as putforth in the plaint. 26. The counsel for the appellants in support of his contentions also placed reliance upon the decisions of the Apex Court dated 29.07.2009 passed in S.A.No.63, 67 and 68 of 2009 [Bagyam and Others Vs. The Commissioner, Coimbatore City Muncipal Corporation and another] The principles of law outlined in the abovesaid decision are followed as applicable to the case at hand. 27. In the light of the abovesaid discussions, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendants. 28. In conclusion, the judgment and Decree dated 29.09.2001 passed in A.S.No.67 of 1999 on the file of the Principal Subordinate Court, Thiruvannamalai confirming the judgment and decree dated 15.06.1999 passed in O.S.No.519 of 1998 on the file of the District Munsif Court, Thiruvannamalai are set aside and resultantly the suit laid by the plaintiff in O.S.No.519 of 1998 is decreed as prayed for with costs. The determination of mense profits is relegated to a separate proceeding. Accordingly the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any is closed.