JUDGMENT : (Prayers: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.50 of 1993 dated 28.06.1994 on the file of the Additional Sub Court, Chengalpet reversing the judgment and decree made in O.S.No.503 of 1983 dated 29.07.1993 on the file of the District Munsif Court, Chengalpet. The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.10 of 1994 dated 28.06.1994 on the file of the Additional Sub Court, Chengalpet confirming the judgment and decree made in O.S.No.503 of 1983 dated 29.07.1993 on the file of the District Munsif Court, Chengalpet.) 1. The plaintiff in O.S.No.503 of 1983 on the file of the District Munsif Court, Chengalpet, is the appellant in both the Second Appeals. The suit in O.S.No.503 of 1983 had been filed by the plaintiff C.B.Panchakshara Mudaliar originally against two defendants namely, Valliammal and her younger brother Sathiyappan, seeking a judgment and decree of partition of the suit properties into four equal parts and to allot him three such parts in item No.2 and two such parts in item No.1 and also for damages of Rs.2,500/- being the value of Velikathan trees alleged to have been cut and carried away by the defendants and for costs of the suit. 2. Pending the suit, the 2nd defendant, Sathiyappan died and his legal representatives were brought on record as 3rd to 5th defendants. By judgment dated 29.07.1993, the suit was decreed with respect to grant of partition and separate possession, but dismissed with respect to the relief of damages for the value of the Velikathan trees said to have been cut and carried away by the defendants. Questioning the denial of grant of damages, the plaintiff filed A.S.No.10 of 1994 before the Additional Sub Court, Chengalpet and questioning the grant of partition and separate possession, the 1st defendant Valliammal filed A.S.No.50 of 1993 also before the Additional Sub Court, Chengalpet. Both the appeals were heard together and a common judgment was delivered on 28.06.1994. The learned Additional Sub Judge, Chengalpet allowed A.S.No.50 of 1993 and dismissed A.S.No.10 of 1994. In effect, the suit in O.S.No.503 of 1983 was dismissed in entirety. Both the appeals were heard together and a common judgment was delivered on 28.06.1994. The learned Additional Sub Judge, Chengalpet allowed A.S.No.50 of 1993 and dismissed A.S.No.10 of 1994. In effect, the suit in O.S.No.503 of 1983 was dismissed in entirety. Questioning the judgment of the First Appellate Court in the two appeal suits, the plaintiff, C.B.Panchakshara Mudaliar filed S.A.No.1166 of 1994 against the judgment in A.S.No.50 of 1993 and S.A.No.1167 of 1994 against the judgment in A.S.No.10 of 1994. 3. S.A.No.1166 of 1994 had been admitted on the following three substantial questions of law:- “1. Whether in the case of vacant site, possession should follow title? 2. Whether the defendants as a co-sharer cannot prescribe title by adverse possession? 3. Whether the lower appellate Court's findings are vitiated on misreading of the evidence and nonapplication of the law?” 4. S.A.No.1167 of 1994 had been admitted on the following one substantial question of law:- “Whether the plaintiff would be entitled to damages on the evidence adduced in the case as a co-sharer?” O.S.No.503 of 1983 (District Munsif Court, Chengalpet):- 5. The plaintiff C.B.Panchakshara Mudaliar claimed that he was entitled to 1/2 share in item No.1 of the suit property and 3/4 share in item No.2 of the suit property. He claimed that he had purchased the property under sale deed dated 20.09.1954 and 31.10.1977 executed by Sundaramurthy Mudaliar and Gnanambal respectively. It was further claimed that both Sundaramurthy Mudaliar and Gnanambal had common ancestors. It was claimed that the property consisted of house and backyard. It was stated that originally Ramartha Mudaliar and Iyyakannu Mudaliar were both entitled to 1/2 share each in the entire suit property and also on the property North-West of the suit property. The 1/2 share belonging to Iyyakannu Mudaliar was taken by Gnanambal as his only heir as his daughter-in-law. The said 1/2 share which belonged to Gnanambal was purchased by the plaintiff by sale deed dated 31.10.1977. The other half share belonging to Ramartha Mudaliar was taken by Santhana Mudaliar and Kandaswamy Mudaliar in equal parts. After the death of Santhana Mudaliar his son Sundaramurthy Mudaliar became entitled to 1/4 share. The daughter-in-law of Kandaswamy Mudaliar, Valliammal became entitled to other 1/4 share. She succeed to the estate of her husband Thiruvengeda Mudaliar. Sundaramurthy Mudaliar sold his 1/4 share to the plaintiff under the sale deed dated 20.09.1954. After the death of Santhana Mudaliar his son Sundaramurthy Mudaliar became entitled to 1/4 share. The daughter-in-law of Kandaswamy Mudaliar, Valliammal became entitled to other 1/4 share. She succeed to the estate of her husband Thiruvengeda Mudaliar. Sundaramurthy Mudaliar sold his 1/4 share to the plaintiff under the sale deed dated 20.09.1954. It was claimed that the plaintiff was therefore entitled to 3/4 share in item No.2 and the other 1/4 share was entitled to the 1st defendant Valliammal. Claiming partition and separate possession of 3/4 share in item No.2 property and 1/2 share in item No.1 property, the suit had been filed for partition and separate possession. It was further stated in the plaint that the 2nd defendant, Sathiyappan who was the younger brother of the 1st defendant/Valliammal had cut away Velikathan trees and consequently, damages at Rs.250/- per ton was claimed. It was however stated that though 20 tonnes of wood had been taken away the claim was restricted to Rs.2,500/- and damages to that extent was also sought. 6. The 1st defendant Valliammal in her written statement denied the validity and binding nature of the two sale deeds dated 20.09.1954 and 31.10.1977 relied by the plaintiff. She further stated that the properties mentioned in the schedule to the plaint were not the properties mentioned in the two sale deeds. It was therefore stated that the plaintiff was not entitled to claim any share in the suit properties on the basis of the two sale deeds. It was stated that item No.1 property originally belonged to her husband Thiruvengeda Mudaliar who had put up a hut and after his death she was residing in the entire item No.1 property. It was therefore stated that neither Sundaramurthy Mudaliar nor the plaintiff had any title or right to the possession of the said property. It was further stated that with respect to item No.2 property, that Gnanammbal had no right at any point of time. It originally belonged to Thiruvengeda Mudaliar and thereafter, on his death, she became entitled to the said property. 7. The Geneological table relied on by the plaintiff was also disputed. It was further stated that the alleged share of Ramartha Mudaliar, Iyyakannu Mudaliar and its devolution as stated in the plaint were not correct. It was stated that she had perfected title by adverse possession, in view of her and her husband's continuous possession. 7. The Geneological table relied on by the plaintiff was also disputed. It was further stated that the alleged share of Ramartha Mudaliar, Iyyakannu Mudaliar and its devolution as stated in the plaint were not correct. It was stated that she had perfected title by adverse possession, in view of her and her husband's continuous possession. The claim for damages was also denied and disputed. She claimed that the suit must be dismissed. 8. The 2nd defendant, Sathiyappan filed a written statement stating that he was an unnecessary party to the suit and specifically denying that he had cut away the velikathan trees as alleged by the plaintiff. On his death, his legal representatives were brought on record and the 3rd defendant also filed written statement again stating that they are unnecessary parties to the suit and that the plaintiff was not entitled to seek any relief against them. 9. The two items of property which had been mentioned by the plaintiff were situated at Sithanakavur Village, Uthiramerur Taluk, Chengalpet District. The item No.1 property was in S.No.52.2 to the East of Rettaivada Street, to the West of the item No.2 property, to the North of Balachandara Mudaliar's house plot and to the South of the plaintiff's house and backyard. It was stated that there was a thatched house in item No.1. The item No.2 property was to the East of the house of the plaintiff, to the West of Semathaan lake, to the North of houses/plots of Palani Mudaliar, Thiringnanasambantha Mudaliar and Muthukumarasamy Mudaliar and to the South of house and backyard of Chinthamaniammal. The plaintiff claimed 1/2 share in item No.1 property and 3/4 share in item No.2 property. 10. On the basis of the above pleadings, the District Munsif Chengalpet, framed the following issues for trial:- “1. Whether the sale deeds dated 20.09.1954 and 31.10.1977 are legally executed documents and would bind the defendants and whether the properties in the schedule therein are the properties in the schedule to the plaint? 2. Whether the plaintiff was entitled to seek partition and separate possession? 3. Whether the defendants have perfected title by adverse possession? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the plaintiff is entitled for the claim of damages? 6. To what other reliefs?” 11. 2. Whether the plaintiff was entitled to seek partition and separate possession? 3. Whether the defendants have perfected title by adverse possession? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the plaintiff is entitled for the claim of damages? 6. To what other reliefs?” 11. During trial, the plaintiff C.B.Panchakshara Mudaliar examined himself as PW-1 and he also examined two other witnesses as PW-2 and PW-3. The 1st defendant Valliammal examined herself as DW-1. The plaintiff marked Exs.A1 to A7. Exs.A1 and A2 were the sale deeds dated 20.09.1954 and 31.10.1977. Ex.A5, A6 and A7 were also other sale deeds dated 06.06.1973, 15.04.1974 and 31.07.1976. On the side of the defendants, Exs.B1 to B9 were marked which all related to house tax receipts and demand notices. An Advocate Commissioner had been appointed and his report and sketch were marked as Exs.C1 and C2. 12. The learned District Munsif, Chengalpet, took up for consideration the issues and examined whether the suit schedule properties were the properties which had been purchased by the plaintiff under Exs.A1 and A2/sale deeds dated 20.09.1954 and 31.10.1977. The schedule of the properties were reproduced in the course of the judgment. It was observed that the measurements had not been properly given in the schedule to the plaint. The schedule as given in Exs.A1 and A2 were also extracted. Thereafter, it was very specifically found that the two suit schedule properties were adjacent properties. Item No.1 property was to the East of the street and further down was item No.2 property. The boundaries were compared and it was found that they were in consonance with the properties as given in the schedule to Exs.A1 and A2. Exs.C1 and C2 were also examined. The houses of the plaintiff and the 1st defendant were also identified in Ex.C2 rough sketch. It was specifically found that though they objections were raised to the report of the Advocate Commissioner with respect to the houses shown in the rough sketch, those objections were not specific. It was also found that the properties were enjoyed in common. It was held that Exs.A1 and A2 being sale deeds cannot be rejected by the Court. It was also observed that in the sale deed Ex.A2, there was reference to the earlier sale deed Ex.A1. 13. It was also found that the properties were enjoyed in common. It was held that Exs.A1 and A2 being sale deeds cannot be rejected by the Court. It was also observed that in the sale deed Ex.A2, there was reference to the earlier sale deed Ex.A1. 13. With respect to possession, the District Munsif erred in relying on the report of the Advocate Commissioner to hold that the plaintiff was in possession. This finding by the District Munsif is not lawfully correct. The parties will have to establish possession and it is not for the Advocate Commissioner to either speak about possession and if he does so in the report, the Court should not take note of such statement and should not base their findings on possession on the basis of the report of the Advocate Commissioner. Therefore, even though the District Munsif had held that the plaintiff was in possession, since such finding was on the basis of the report of the Advocate Commissioner, I would straight away state that the District Munsif had erred in such a finding. 14. But however, holding that the properties mentioned in the sale deeds were in consonance with the properties as mentioned in the suit schedule and that the sale deeds cannot be rejected and they are binding and that they had been lawfully executed, the District Munsif held that the plaintiff was entitled to partition and separate possession as sought for. 15. The relief of damages was negatived, since there was no direct evidence on the aspect of cutting away trees by either the 1st or 2nd defendants. There was no evidence regarding the value of the trees even if so cut down and therefore the relief of damages was rejected. 16. The suit was therefore partly decreed only with respect to partition and separate . A.S.Nos.50 of 1993 and 10 of 1994 (Additional Sub Court, Chengalpet):- 17. As stated, the defendant Valliammal filed A.S.No.50 of 1993 questioning the decree of the suit with respect to partition and separate possession. The plaintiff filed A.S.No.10 of 1994 questioning denial of relief of damages. Both the appeals came up for consideration before the Additional Sub Court, Chengalpet. By judgment dated 28.06.1994, A.S.No.50 of 1993 was allowed and the judgment and decree of the Trial Court with respect to grant of partition and separate possession was set aside. The plaintiff filed A.S.No.10 of 1994 questioning denial of relief of damages. Both the appeals came up for consideration before the Additional Sub Court, Chengalpet. By judgment dated 28.06.1994, A.S.No.50 of 1993 was allowed and the judgment and decree of the Trial Court with respect to grant of partition and separate possession was set aside. A.S.No.10 of 1994 was dismissed confirming rejection of claim for damages. 18. The learned First Appellate Court Judge in the common judgment framed points for consideration and again re-examined the schedules of the properties. The learned First Appellate Court Judge found fault with the description of the item No.1 property particularly the boundaries mentioned, wherein it should have been given that one of the boundaries was the house of Chinthamaniammal, but was given as the house of the plaintiff himself. Even with respect to item No.2 property, the boundaries were again examined. The First Appellate Judge did not accept the contention that the suit properties were the properties mentioned in the two sale deeds in Exs.A1 and A2. It was also specifically found that the 1st defendant and Sundaramurthy Mudaliar were co-owners and the plaintiff had purchased the property only from Sundaramurthy Mudaliar in Ex.A1. It was also found that it had to be examined whether Iyyakannu Mudaliar had any right in the properties mentioned in Exs.A5 to A7. It was found that the plaintiff had not established the identity of the properties or that the suit properties were the properties mentioned in Exs.A1 and A2. It was also found that though the plaintiff would have a case for partition, the relief was barred by limitation. It was also found that the 1st defendant had prescribed title by adverse possession. Therefore, on the basis of said findings, A.S.No.50 of 1993 was allowed and A.S.No.10 of 1994 was dismissed. In effect O.S.No.503 of 1983 was dismissed in entirety. S.A.Nos.1166 & 1167 of 1994:- 19. Questioning the aforementioned common judgment in the two first appeals, the plaintiff filed S.A.No.1166 of 1994 against the judgment and decree in A.S.No.50 of 1993 and S.A.No.1167 of 1994 against the judgment and decree in A.S.No.10 of 1994 as stated above. 20. Heard arguments advanced by Mr.M.S.Subramanian, learned counsel for the appellant and Mr.Hariharan, learned counsel for the 5th respondent. 21. I would refer the appellant as plaintiff and respondents as defendants, while discussing both the Second Appeals. 22. 20. Heard arguments advanced by Mr.M.S.Subramanian, learned counsel for the appellant and Mr.Hariharan, learned counsel for the 5th respondent. 21. I would refer the appellant as plaintiff and respondents as defendants, while discussing both the Second Appeals. 22. S.A.No.1166 of 1994 had been admitted on the following three substantial question of law:- “1. Whether in the case of vacant site, possession should follow title? 2. Whether the defendants as a co-sharer cannot prescribe title by adverse possession? 3. Whether the lower appellate Court's findings are vitiated on misreading of the evidence and non-application of the law?” 23. S.A.No.1167 of 1994 had been admitted on the following one substantial question of law:- “Whether the plaintiff would be entitled to damages on the evidence adduced in the case as a co-sharer?” 24. Pending the Second Appeals, the plaintiff/appellant C.B.Panchakshara Mudaliar died and his legal representative was brought on record. The 1st defendant/1st respondent Valliammal also died and her legal representatives were also brought in record. S.A.No.1167 of 1994:- 25. This Second Appeal had emanated from the claim of the plaintiff that he was entitled to damages at Rs.2,500/- against the 1st defendant, Valliammal who it is alleged, had, with the assistance of the 2nd defendant, Sathiyappan cut away velikathan trees weighing about 20 tonnes. It was claimed that each ton would be worth about Rs.250/-. But however, the claim was restricted to Rs.2,500/-. 26. In the written statement filed by the 2nd defendant Sathiyappan and later by his legal representatives this averment had been specifically denied. It was stated that a police complaint was given in this regard but was not taken cognizance by the police officials. The plaintiff therefore had a burden to establish the alleged cutting way of the velikathan trees. There is no evidence on this aspect. In view of that particular fact, I would straightaway dismiss S.A.No.1167 of 1994, holding that, since the averment of cutting away velikathan trees had not been proved by the plaintiff, both the Courts below had correctly held, that he was not entitled for any damages on that ground. The said concurrent findings on fact are affirmed. In the result, S.A.No.1167 of 1994 is dismissed. No costs. S.A.No.1166 of 1994:- 27. The first substantial question of law framed was whether in the case of vacant site, possession should follow title. 28. The said concurrent findings on fact are affirmed. In the result, S.A.No.1167 of 1994 is dismissed. No costs. S.A.No.1166 of 1994:- 27. The first substantial question of law framed was whether in the case of vacant site, possession should follow title. 28. The plaintiff claims title by two sale deeds, the first dated 20.09.1954 executed by Sundaramurthy Mudaliar and the second dated 31.10.1977 executed by Gnanambal. The property was said to have originally belonged to Ramartha Mudaliar and Iyyakannu Mudaliar. Ramartha Mudaliar had two sons, namely, Santhana Mudaliar and Kandaswamy Mudaliar. Sundaramurthy Mudaliar, the vendor of Ex.A1 is the son of Santhana Mudaliar. Kandasamy Mudaliar had three sons. The first son is Thiruvengeda Mudaliar and his widow is the 1st defendant Valliammal. The other two sons are said to have died as bachelors. It is thus seen that in the branch of Ramartha Mudaliar only Sundaramurthy Mudaliar, the vendor in Ex.A1 and Valliammal, the 1st defendant were alone alive at the time of filing the suit. Iyakannu Mudaliar had three sons. The first son died unmarried. The second son and his wife also died and the third son Shanmugha Mudaliar had also died and his widow Gnanambal was the vendor in Ex.A2, sale deed dated 31.10.1977. It is thus seen that the properties mentioned under Exs.A1 and A2 belonged to one composite family which had two separate branches Ramartha Mudaliar and Iyyakannu Mudaliar. 29. The plaintiff appears to have purchased a portion of the property under two sale deeds from one member of each branch and therefore allowing for the share of the 1st defendant had instituted the suits claiming 1/2 share in item No.1 property and 3/4 share in item No.2 property. It is also stated that both the properties were adjacent properties. There was also a backyard. The Trial Court had entered upon a detailed examination regarding the schedule of the properties as mentioned in the plaint in comparison with the schedules as given in Exs.A1 and A2. The Trial Court held that though the plaintiff had purchased the property in Ex.A1 only from Sundaramurthy Mudaliar, the other co-sharer, Valliammal, was alive had not joined in the sale deed. This position is also admitted by the plaintiff and it is for that reason he recognized that Valliammal had share in the property. 30. The Trial Court held that though the plaintiff had purchased the property in Ex.A1 only from Sundaramurthy Mudaliar, the other co-sharer, Valliammal, was alive had not joined in the sale deed. This position is also admitted by the plaintiff and it is for that reason he recognized that Valliammal had share in the property. 30. With respect to the other branch, the plaintiff claims that he purchased the property from Gnanammbal who admittedly was a daughter-in-law of the family and after the death of her husband had succeeded to his property. Both the sale deeds dated 20.09.1954/Ex.A1 and dated 31.10.1977/Ex.A2 have not been questioned or challenged by the 1st defendant or by any other member of the family. 31. It is thus seen that the sale deeds have been recognized or acted upon. In Ex.A1 there is a specific covenant that possession had been handed over to the plaintiff. Similarly, in Ex.A2 also, there is a specific covenant of handing over possession to the plaintiff. 32. The learned counsel for the respondents herein/defendants had commented upon very critically on the finding of the Trial Court judge, stating that the conclusion on possession had been arrived on the basis of the report of the Advocate Commissioner. That finding of the learned District Munsif is not correct. But in both Exs.A1 and A2 it had been specifically mentioned that possession had been handed over. 33. Further, the sketch of the Advocate Commissioner, Ex.C2 very clearly shows the house of the plaintiff and it has been stated as 'Palwadi school'. The hut of the 1st defendant had also been identified and marked as 'thatched house'. A perusal of the sketch showns that they are both two separate houses/huts. There is also a cattle tub, there is a ditch, there is a wall and there is also a hayrack. The trees are also marked. To the South the property is bounded by the property of Balasundara Mudaliar and to the North it is bounded by titled house of Chinthamaniammal. Further south is the vacant plot of plaintiff. The northern boundary is velikathan fence. It is thus seen that the property is identifiable at ground level. 34. In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 , the Hon'ble Supreme Court held as follows: “14. A preliminary decree determines the rights and interests of the parties. Further south is the vacant plot of plaintiff. The northern boundary is velikathan fence. It is thus seen that the property is identifiable at ground level. 34. In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 , the Hon'ble Supreme Court held as follows: “14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. 15. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand v. Gopal Lal [ AIR 1967 SC 1470 ] wherein this Court stated as follows: (AIR p. 1473, para 7) “7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; … There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.” 35. In the preliminary decree only the shares of the parties alone are determined. The plaintiff cannot be non-suited on the ground that the defendants claim adverse possession, when they both enjoyed the common property, there cannot be any issue of adverse possession. The First Appellate Judge has misdirected himself on that ground. Even though the plaintiff may not be physically living in that particular place, still the sale deed asserts his possession. The defendants have a separate hut for which she pay taxes. She is entitled to that particular portion. The plaintiff is not claiming, right, title over the entire property, but only 1/2 share in item No.1 property and 3/4 share in item No.2 property. Actual division will be carried out only during the final decree proceedings. There is no impediment in passing another preliminary decree, if at all during the course of final decree proceedings, it is found that the shares of the properties have varied. 36. I hold that even if it is to be found that the plaintiff is not in possession, he cannot be non-suited on that ground in a suit for partition. He would only be called upon to pay appropriate court fees, which he would have to pay, if he is not in possession. That is an issue which can be taken by the Trial Court during the final decree petition. However, the finding that the plaintiff is not at all entitled to any share by the First Appellate Court has to be interfered with. The issue is only with respect to the title and not with respect to possession. The issue of possession can always be re-examined and the plaintiff can be called upon to pay additional court fees under the correct provision of law, even during the final decree proceedings. The issue is only with respect to the title and not with respect to possession. The issue of possession can always be re-examined and the plaintiff can be called upon to pay additional court fees under the correct provision of law, even during the final decree proceedings. The plaintiff had paid court fees under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1965. If it is found during trial that the final decree proceedings that he is not in possession, then the Trial Court can always call upon the plaintiff to value the suit and pay Court fees under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act, 1965. But on the basis of that narrow ground of possession, the suit cannot be dismissed, particularly when the title has been established. 37. The first substantial question of law is whether possession follows title in vacant land. A glance of Ex.C2 shows that the property is not vacant land. The house of the plaintiff is there. The house of the defendants is also there. There are also other small constructions put up. Therefore, during final decree proceedings, the Trial Court is always at liberty to established the issue of possession and before passing of decree can call upon the plaintiffs to pay the court fees in accordance with law. The first substantial question of law though framed regarding possession becomes obsolete, since the plaintiff claimed a decree for partition and separate possession. Even though as a principle, possession follows title with respect to vacant land, in the instant case, the said substantial question of law has become otiose, since the plaintiff's title is upheld under Exs.A1 and A2. The property is not a vacant land. There are small constructions. The backyard is of course there, but still again, item Nos.1 and 2 properties are adjacent to each other. They cannot be categorized as totally vacant land. The first substantial question of law is answered accordingly, giving liberty to the Trial Court to examine the issue of possession during the final decree proceedings and if at all owing to further circumstances, the ratio have to be readjusted to pass a further preliminary decree in accordance with the dictum laid down in Ganduri Koteshwaramma reported in (2011) 9 SCC 788 (referred supra). 38. 38. The second substantial question of law is with respect to the claim of adverse possession by the defendants and whether co-sharers can claim adverse possession as against another co-sharer. It is clear and obvious that both the parties are enjoying the properties. The sale deed of the plaintiff speaks about possession being handed over and the defendant has a hut in that particular place. She has produced documents to show payment of house tax. But, payment of house tax would not be a ground to hold that the defendants had prescribed title by adverse possession. Adverse possession must be hostile to the true owner. Such hostility is not evident on the basis of the oral and documentary evidence adduced by the defendants. 39. The possession of a co-sharer is considered as possession of all cosharers. Joint title is presumed. Long or continuous possession would not constitute adverse possession. In order to constitute adverse possession, it is not enough to show exclusive possession and enjoyment of the properties. The co-sharer out of possession must have notice of assertion of hostile possession ousting him. 40. In P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , the Supreme Court held that the possession of one co-heir is considered, in law, as possession of all the co-heirs. It was held as follows:- “8…But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one coheir is considered, in law, as possession of all the coheirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 [C]. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 [C]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” (Emphasis supplied) 41. In Maharajadhiraj of Burdwan, Udaychand Mahatab Chand v. Subodh Gopal, (1970) 3 SCC 681 , the Supreme Court observed that a possession of a co-owner, howsoever long, cannot by itself be held to be adverse. It was held as follows: “11. We are unable to appreciate the contention of the appellant that he had acquired a permanent right in the suit lands in view of the fact that he was in exclusive possession of the same for a long time. The appellant had not put forward a plea of adverse possession. Once it is held that he is a co-owner of the lands in question, his possession, however long it might be, unless it is adverse to the other co-owners cannot confer on him any right.” Emphasis supplied) 42. In Md. Mohammad Ali v. Jagadish Katila, (2004) 1 SCC 271, the Supreme Court held as follows: “25. Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other cosharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. ......” (Emphasis supplied) 43. In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570 , the Supreme Court held as follows: “14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession: “14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. … 15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant [ (1995) 2 SCC 543 , p. 554: AIR 1995 SC 895 , p. 902], SCC p. 554, paras 14-15.)” 15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar [(1865) LR 1 Eq 29: 35 Beav 171: 55 ER 860].) Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxton [(1880) 14 Ch D 537: 43 LT 88].)” (Emphasis supplied) 44. In Pappayammal v. Palanisamy, (2005) 3 Mad LJ 32, this Court summarised the principles relating to the plea of adverse possession set up by a co-owner against the other co-owner and held as follows: “32. The following are the important principles, laid down in the above decisions of this Court as well as the Supreme Court: i) A party can plead adverse possession only when he admits that another person has got title. ii) In the case of a co-owner, mere possession, however long it might be, would not constitute adverse possession. The following are the important principles, laid down in the above decisions of this Court as well as the Supreme Court: i) A party can plead adverse possession only when he admits that another person has got title. ii) In the case of a co-owner, mere possession, however long it might be, would not constitute adverse possession. The possession must be over the statutory period and there must be clear ouster to the knowledge of the coowner against whom the adverse possession is pleaded. iii) As between the co-owners, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other, so as to constitute the ouster. The burden of making out ouster is on the person, claiming to displace the lawful title of the co-owner, by his adverse possession. iv) The party pleading adverse possession must state with sufficient clarity as to from when his adverse possession commences and the nature of his possession. v) When the co-owners are close relations, something more is to be proved, to prescribe title by adverse possession, than a case between two strangers. vi) It would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession. vii) A single circumstance of payment of tax or mutation of records would not, by itself, establish ouster or adverse possession as against the co-owner.” (Emphasis supplied) 45. I would therefore answer the second substantial question of law that co-sharers cannot claim adverse possession as against the another cosharer. In this case, the defendants are not entitled to claim any advantage claiming adverse possession. The second substantial question of law is answered accordingly against the defendants. 46. The third substantial question of law relates to appreciation of evidence and I would, in view of the fact that the claim of the plaintiff for partition and separate possession is upheld and the judgment of the First Appellate Court with respect to adverse possession is interfered with hold that the First Appellate Court had actually misdirected itself by incorrect appreciation of the evidence available. 47. In view of the above reasonings, S.A.No.1166 of 1994 is allowed, but however taking into consideration the long period of litigation involved by the parties, I would refrain from awarding costs. 48. 47. In view of the above reasonings, S.A.No.1166 of 1994 is allowed, but however taking into consideration the long period of litigation involved by the parties, I would refrain from awarding costs. 48. In the result, (i) S.A.No.1166 of 1994 is allowed. No costs. (ii) S.A.No.1167 of 1994 is dismissed. No costs.