ORDER
S.K. Krishnan, J.
1. Aggrieved by the judgment and decree dated 31.3.1993 passed in A.S. No. 230 of 1992 by the Additional Subordinate Judge, Cuddalore reversing the judgment and decree dated 12.12.1991 made in O.S. No. 825 of 1989 by the District Munsif, Cuddalore, the first defendant has filed the above second appeal.
2. The averments made in the plaint are as follows:
a. The suit property mentioned in ‘B’ schedule originally belonged to Govindasamy Naidu and his two brothers. In an oral partition, ‘B’ schedule property was allotted to the said Govindasamy Naidu and he was in possession and enjoyment of the same till his death. After the death of Govindasamy, his only son Ramamurthy, who is the husband of the plaintiff, was in possession and enjoyment or the same. The said Ramamurtny also died three years prior to the date of filing of the suit leaving behind his wife and five children. After the death of Ramamurthy, the plaintiff has been in possession and enjoyment of the suit property. The suit property is a vacant site and in a portion of that property, there is a hut, in which the plaintiff has been residing from the date of her marriage, with the knowledge of the defendants and adverse to the defendants for more than a statutory period. The second defendant is the son of Venkatachala Naidu, who was a cousin of Govindasamy Naidu. The first defendant attempted to trespass into the suit property in the third week of March 1989 alleging that he had purchased the suit property from the second defendant. However, such attempt was successfully thwarted. Hence, the plaintiff filed the suit to declare possessory title to the suit property and for permanent injunction.
3. The averments made in the written statement filed by the first defendant are as follows:
a. Originally the entire suit property was owned and enjoyed by the father of the second defendant Venkatachala Naidu and his brother. After the death of his brother, whose property was divided into two halves, one half share was in possession and enjoyment of his brother’s wife Mangalammal and daughter Pangajamnal and another half share was in possession and enjoyment of the said Venkatachala Naidu. After the death of Venkatachala Naidu, oral partition was effected among his three sons and the above half share of Venkatachala Naidu was allotted to the second defendant. At the request of the plaintiff’s father-in-law, the above said Mangalammal, permitted him to put up a thatched hut to an extent of two cents for dwelling purpose without proprietary right. Neither the plaintiff nor her husband has any title to the entire suit property. The second defendant sold his share in the suit property to the first defendant on 2.10.1987 for a valuable consideration. From the date of purchase, the first defendant has been in possession of the property by raising various crops.
4. The Second appeal was admitted on the following substantial questions of law:
a. Whether the lower appellate Court is right in decreeing the suit filed by the first respondent when Ex.A-1 to A-20 filed by her do not at all prove either title or possession over the suit property ?
b. Whether the lower appellate Court is right in holding that the first respondent has perfected title by adverse possession when it was not pleaded and when the document filed by the first respondent was only from the year 1978 and the suit was filed in 1989 ?
5. The learned counsel appearing for the appellant would submit that originally one Venkatachalam was the owner of the property and thereafter, his son second defendant herein, succeeded to the said property and thereafter, during the course of his enjoyment and possession over the suit property he sold the same to the first defendant.
6. It is contended that the first defendant considering the poor condition and status of the plaintiff, he allowed the plaintiff to put up a hut in the suit property and therefore, the plaintiff is not entitled to claim any title or interest over the suit property by adverse possession and that too without any documentary evidence for claiming adverse possession.
7. Per contra, the learned counsel appearing for the respondents would submit that the alleged sale deed has been executed by Raju Naidu in favour of the first defendant only after the death of Ramamurthy Naidu, who is the husband of the plaintiff, in order to take away the property and to defeat the claim of the plaintiff.
8. In such circumstances, the learned counsel would submit that on a careful analysis of the entire evidence as well as the documentary evidence produced by the plaintiff, the lower appellate Court has rightly concluded that the plaintiff is entitled for declaration and injunction against the defendants 1 and 2. In such circumstances, no interference is warranted in this second appeal.
9. On a perusal of the records, it is revealed that the plaintiff filed house tax receipts and kist receipts, namely, Exs. A-1 to A-20, for the period from 1974 to 1989. All the receipts bear the name of Ramamurthy, who is the husband of the plaintiff.
10. From the above documents and in the absence of any other documents refuting the same, it can be concluded that the plaintiff and her husband and father-in-law have been in possession of the suit property.
11. Further, the plaintiff has pleaded in her plaint as follows:
“The petitioner/plaintiff is residing in the hut from date of her marriage and she is in continuous possession of the suit property and also in possession of the vacant site for well over the statutory period to the knowledge of the respondents/defendants herein and adverse to the respondents/defendants the plaintiff/petitioner has prescribed title by adverse possession and ouster also.”
12. In support of her pleadings, she has filed Exs. A-1 to A-20, whereas, the appellant has not produced any evidence refuting the documents of the plaintiff. Of course, the appellant has filed Exs. B-1, sale deed, dated 2.10.1967 and kist receipts, Exs.B-2 to B-4. The Kist receipts are relating to the period of 1990 and 1991. From the above documents filed by the appellant, as rightly contended by the first respondent/plaintiff, it is clear that only to defeat the claim of the plaintiff, after the filing of the suit, the appellant created the said documents and therefore, I am of the view that those documents cannot stand in the path of claiming adverse possession by the plaintiff.
13. For coming to the conclusion in the light of the above facts and discussion, it is necessary to see what the settled principles of law with regard to adverse possession says.
14. It is settled law that the party who claims adverse possession, has to establish his uninterrupted possession and enjoyment as against the original owner for more than the statutory period to the knowledge and hostile to the said person.
15. In Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, the Supreme Court held that possession must be open and without any attempt at concealment and that it was not necessary that possession must be specifically brought to the knowledge of the owner.
16. In Parsinni v. Sukhi, 1993 (4) SCC 375, the Supreme Court held as follows:
“Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession must be “nec vi, nec clam, nec precario, i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought if to exercise due vigilance to be aware of what is happening.”
17. From the evidence of P.W.1, it is clear that from the life time of her father-in-law, i.e. for more than 30 years, they have been in continuous, open, peaceful possession and enjoyment of the suit property. It is also evident from the written statement filed by the first defendant that from the life time of the plaintiff’s father-in-law, they have been in possession of the suit property.
18. To perfect title by adverse possession, the inseparable essential ingredients are corpus possidendi and animus possidendi i.e., physical possession on the one hand and the intention to exclude the real owner if any from possession, without concealment, with adequate continuity upon enjoyment.
19. When the first respondent/plaintiff has established that she has been in possession physically, continuously, peacefully, openly and without any attempt to conceal her possession, for more than a statutory period, I am of the view that the settled principles of law are squarely applicable to the case of the first defendant/plaintiff.
20. In such circumstances, the substantial questions of law are answered against the appellant for the reasons stated above.
21. In view of the above, this Court does not find any infirmity in the judgment and decree passed by the lower appellate Court.
22. In result, the second appeal fails and is dismissed. No costs.